SITARAM MOTILAL KALAL Vs. SANTANUPRASAD JAISHANKER BHATT

JUDGEMENT

(1.) I regret my inability to agree.

(2.) Sitaram Motilal Kalal, hereinafter called the 1st defendant, is an agriculturist having lands at Kathwada village. He owned a motor-car bearing registration No. BYD 816. He entrusted the said car to Mohammed Yakub Haji, hereinafter called the 2nd defendant, for plying the same as a taxi in Ahmedabad. The 2nd defendant ran the taxi, collected the fare, met the expenditure incurred in connection with the said service, rendered account to the 1st defendant and remitted the balance to him. In short, the 2nd defendant was not merely the driver of the taxi but he was also in entire charge of plying the taxi in Ahmedabad. The 2nd defendant appointed the 3rd defendant as a cleaner for the taxi. Presumably because the 2nd defendant wanted another to assist him in driving the car during his absence from the city, he trained the 3rd defendant to drive the car and on April 11, 1940, the 2nd defendant took the 3rd defendant to the Regional Transport Authority for obtaining a licence for him. On that date a test was being conducted by the Regional Transport Officer on the capacity of the 3rd defendant to drive a car for the purpose of issuing to him a permanent licence for driving. At about 5 p.m. on that day, the plaintiff, who is a pleader practising in the courts of the district of Ahmedabad, was going out of the compound of the office of the Regional Transport Authority. At that time, the 3rd defendant was driving the car towards Lal Darwaja side; without giving any signal, he took a sudden turn towards the gate of the Office of the Regional Transport Authority, accelerated the speed and dashed the car with great force against the pillar of the gate of the said office. In that process, the plaintiff's leg was pinned between the compound wall and the gate, with the result it was crushed and later on amputated. After recovering from a long illness, the plaintiff filed a suit, being Special Suit No. 66 of 1950, in the Court of the Civil Judge, Ahmedabad, for recovery of damages in a sum of Rs. 80,000 from defendants 1, 2 and 3 and the 4th defendant, the Indian Globe Insurance Company Limited, with whom the said car was insured. All the defendants denied their liability.

(3.) The learned Civil Judge held that the 3rd defendant was negligent in driving the taxi, that he was the servant of the 2nd defendant and not of the 1st defendant, and that even if he was the servant of the 1st defendant as a cleaner of the car, he did not act within the scope of his authority when he drove the car and caused the accident. In the result, he gave a decree against defendants 2 and 3 in a sum of Rs. 20,000 and dismissed the suit against the 1st defendant; he also dismissed the suit against the 4th defendant, as the 1st defendant, who insured the car, was exonerated from liability Against the said judgment and decree the plaintiff preferred an appeal to the High Court of Bombay in so far as the decree went against him. A Division Bench of the said High court came to the conclusion that the entire management of the car was given to the 2nd defendant, that in discharge of his duty as such manager he appointed the 3rd defendant with the consent of the 1st defendant and that by clearest implication the 1st defendant, in the circumstances of the case, must be regarded as having authorised the act of the 2nd defendant in training the 3rd defendant as a car-driver and that, therefore, he would be liable in damages for the accident caused by the negligence of the 2nd and 3rd defendants in the course of their employment. So far as the 4th defendant was concerned, the High Court held that in view of S. 96 (1) of the Motor Vehicles Act, 1939, no decree could be directly passed against it, but the decree against the 1st defendant could be executed against it in terms of the said section. It raised the quantum of damages from Rs. 20,000 to Rs. 25,000. The suit was decreed in favour of the plaintiff against defendants 1, 2 and 3 with costs. The 1st defendant, by certificate, has preferred the present appeal.