DBALAKRISHNA Vs. SADASIVARAJU

JUDGEMENT

(1.) On the night of May 5, 1950, at a point, on what is described in the evidence as the platform mad near a railway under bridge, in Bangalore City a lorry bearing No. MY 2799 Z was involved in an accident in which one Eswararaju and two others were killed. This Eswararaju was, it appears, at that time, 52 years old and was a Government servant serving as an overseer in the City Improvement Trust Board in the City, of Bangalore.

(2.) The suit out of which this appeal arise was instituted by his son the first plaintiff and by his three unmarried daughters, plaintiffs 2 to 4 for the recovery from defendant 1, who according to them was the owner of that lorry, a sum of Rs. 15,000/- which as claimed by them, represented the loss of pecuniary benefit which they would have derived according to reasonable expections, had not Eswararaju been killed in that way. The case for the plaintiffs was that defendant 2, a driver employed by defendant 1 was driving the lorry on that date at high speed and that it was on account of his rash and negligent driving that Eswararaju was killed. The case for the plaintiffs also was that defendant 2 was, when he drove that lorry on that night, acting in the course of his employment under defendant 1.

(3.) Defendant 1 admitted that the lorry bearing number MY 2799 Z belonged to him and that defendant 2 was his driver. But in his written statement he denied that the lorry had been proceeding that night along the platform road on the business of defendant 1. It is clear that what defendant 1 intended to contend by making such a statement was that defendant 2 was not acting in the course of his employment when he drove the lorry on that night. Defendant 1, however, did not deny in his written statement the averment contained in paragraph 4 of the plaint that the lorry was being driven at high speed when it knocked down Eswararajan, although in paragraph 2 of the written statement defendant 1 put the plaintiff to strict proof of the allegations relating to rashness and negligence on the part of defendant 2 when he was driving the lorry on that night.