PONNAMMA Vs. RAMANATHAN

JUDGEMENT

(1.) This is an action in tort; and the question is whether the 1st defendant is liable for the negligence of his employee, the second defendant. On 14-7-1961 at about 1-30 p. m. the 2nd plaintiff took the motor car bearing registration No KLT 825 belonging to his brother, the 1st plaintiff, to a motor workshop called Vasanthi Motor workshop owned by the 1st defendant. The 2nd defendant a mechanic and an employee of the workshop did some repair work. The 2nd plaintiff took back the vehicle, but on road he found that the old trouble persisted. The vehicle was again taken back to the workshop at about 4.30 p.m. The vehicle was left there and the 2nd plaintiff came to the workshop round about 5-30 p.m. to take back the vehicle. He then found the car lying in a ditch near the workshop with serious damage to the vehicle. On enquiry the plaintiffs found that the 2nd defendant, the mechanic attached to the workshop, after repairing the car took it out for trial and ran into this accident. The car was subsequently got repaired at another workshop at an expense of Rs. 2,800/-. The action is for recovery of that amount from defendants 1 and 2. Both the defendants were at one in contending that there was no entrustment of the vehicle to the 1st defendant and that the 1st defendant is not at any rate liable. There was also a vague plea that the 2nd defendant was not a regular employee of the 1st defendant. The Trial Court gave a decree to the plaintiffs against the 2nd defendant, and exonerated the 1st defendant from liability on the ground that there was no entrustment of the vehicle with the 1st defendant himself. On appeal by the plaintiffs the lower appellate court found that the 1st defendant was present in the workshop when the car was given for repairs and consequently a decree was given to the plaintiffs against the 1st defendant as well.

(2.) The legal representative of the 1st defendant who has preferred this appeal contended that the vehicle involved in the accident was not entrusted with the 1st defendant. The 1st defendant's case in Ext. P17 reply notice sent by him in answer to the suit notice was that on the relevant date he was not in his workshop. In the written statement the total absence from the garrage was converted into one for absence for the major part of the day. At the evidence stage the 1st defendant admitted that he was in the workshop till 12 in the noon, and that thereafter he went out in connection with the trial of the car of Dw. 2 repaired in the workshop and came back only at about 6.00 p.m. The evidence of Dw. 2 was read before me. I am inclined to agree with the finding of the court below that much reliance cannot be laced upon that evidence, and conclude that between 12.00 in the noon and 6.00 in the evening the 1st defendant was away from the workshop. There are enough circumstances to suspect the truth of the case put forward by the 1st defendant; and I am inclined to agree with the finding of the court below that the car was left in the care of the 1st defendant by the 2nd plaintiff for carrying on the necessary repair work. In view of this finding I am not considering the question whether the physical presence of the 1st defendant in the workshop was necessary at the time when the car was taken there for the purpose of constituting entrustment of the car.

(3.) The alternative contention raised before me is that the unauthorised driving of the vehicle by the 2nd defendant cannot be deemed to be an act "in the course of his employment". There cannot be any doubt that the 2nd defendant was a mechanic employed by the 1st defendant for doing repairs to the vehicles taken to the workshop. In fact, on the first occasion on the same day it was the 2nd defendant who did some repairs to the car. The question, therefore, is whether the taking out of the vehicle for the purpose of testing can be deemed to be part of the work of the mechanic. The answer given to such a question was in the affirmative in Gopalakrishnan Embrandiri v. Krishnankutty ( 1966 KLT 607 ). In that case this court observed: