GOPALAKRISHNAN EMBRANDIRI Vs. KRISHNANKUTTY

JUDGEMENT

(1.) AFTER the mid-night of January 5/6,1959, the 4th defendant drove the lorry KLR. 1190, into the plaintiff's restaurant, radhakrishna Coffee Club, Trichur, breaking its front shutters' and damaging a frigidier, show-cases, almirahs, tables, chairs, tube lights etc. therein. The 1st defendant was the owner of the lorry and the 2nd defendant is his brother who was in possession, control and management of the lorry. 3rd defendant was its cleaner. The 4th defendant was the mechanic employed by the 2nd defendant to do minor repairs to this lorry and another belonging to himself. At the time of the accident, the 4th defendant was taking the lorry on a test-run after fastening its steering column to the foundation with a new bolt; and the 3rd defendant was beside him in the lorry. The mahazar, Ext. P. 8, prepared by the sub-Inspector of the Town Police station, Trichur, shows that the foot-path in front of the restaurant is 11 ft. 9 inches in width and 9 inches higher than the concrete road which is 47 ft. broad, that the floor of the restaurant is 6 inches higher than the foot-path and that the lorry went 11 ft. inside the hall of the restaurant, causing the aforesaid damages. The plaintiff claimed damages rs. 8,219, from defendants 1, 2 and 4. The courts below have assessed the damages at Rs. 3,813 87p. and decreed it against the 4th defendant alone, exonerating defendants 1 to 3. In this, second appeal the plaintiff seeks to fix the liability on defendants 1 and 2 as well.

(2.) DEFENDANTS 1 and 2 in their written statement denied the defendants 3 and 4 to have been their employees and alleged the 4th defendant to have been an employee in a neighbouring workshop run by pw. 2 and him to have taken out the lorry from their garage without authority or permission when the accident was caused. The 3rd defendant in his written statement supported defendants 1 and 2. The 4th defendant admitted that he was, from 1st January 1959, a paid employee under defendants 1 and 2 but denied to have driven the lorry or caused the accident. The Subordinate Judge found "that the lorry belongs to the 1st defendant and that 2nd defendant was looking after the management of the lorry that the 3rd defendant was the cleaner of the lorry and that the 4th defendant was the blacksmith-mechanic working under the 2nd defendant. That there was negligence and rashness on the part of the 4th defendant who was then driving the lorry is beyond dispute. The 3rd defendant was only sitting beside the 4th defendant. The question arises whether the 4th defendant was acting in the course of his employment. Even the plaintiff admits that the 4th defendant was only a fitter employed in the workshop. He had no licence to drive any motor vehicles. The duty of a mechanic is only to make the necessary repairs. It is not in the course of his employment and he is not engaged to test a lorry by driving it. The 3rd defendant was the cleaner and the 4th defendant was only a fitter. It is no part of their duties to drive the lorry, through the public streets even for a test after repairs. Driving is the duty entrusted to the driver and he alone is competent to drive the lorry. DEFENDANTS 3 and 4 were not acting in the course of their employment, in driving the lorry through the public streets. In any case therefore defendants 1 and 2 cannot be made liable. The 3rd defendant is also not liable. It follows that the 4th defendant alone is liable for the damages. " On appeal by the plaintiff, the Additional District Judge has held: "it has been proved conclusively by the evidence in this case that on the night of the 5th January 1959 lorry bearing registration no. KLR. 1190 ran into the plaintiff's restaurant and caused damage to his articles kept therein and also caused injuries to some of his employees, one of whom died as a result of the injuries sustained. The evidence further shows clearly that the lorry at that time was being driven by the 4th defendant. The 3rd defendant is the cleaner of that lorry and the evidence shows that at the time of the occurrence he was sitting in the lorry by the side of the 4th defendant. . . . . A perusal of the evidence adduced in this case clearly goes to show that it was as a result of the rash and negligent driving of the vehicle by the 4th defendant that the lorry left the road and ran into the restaurant building. . . . . I therefore find that it was the wrongful act of the 4th defendant that caused damages to the plaintiff. I therefore accept the finding of the lower court that the 4th defendant was on the date in question a servant of the 2nd defendant. In the circumstances, the conclusion arrived at by the learned Subordinate Judge that though the lorry belonged to the 1st defendant, it was in the control, possession and management of the 2nd defendant, is correct. The evidence and circumstances go to show that the 4th defendant got the occasion and opportunity to take the lorry out to the road by his having been engaged by the 2nd defendant for the repair work. Though the contesting respondents deny this, there is reason to infer from the evidence and circumstances of the case that the 4th defendant took the lorry out to the road for the purpose of a test. It is not reasonable to expect that defendants 3 and 4 would have taken out the lorry from its garage simply for the purpose of taking tea in a tea-shop in the town itself, as suggested by defendants 1 and 2. Nevertheless, the 2nd defendant cannot in law be made liable for damages caused by the rash and negligent act of the 4th defendant, because it was not within the scope of his authority or within the course of his employment to drive the vehicle. The 4th defendant is admittedly not a mechanic-cumdriver. He is only a smith who perhaps by reason of his experience knew some mechanism of the motor engine too. It was not part of his work to drive the lorry even if it be for a trial run, especially when he had no driving licence liability in torts can arise as against the master only if the servant did a wrongful act authorised by the master, or if the servant did an authorised act in a wrongful or unauthorised manner. It is clear that the 4th defendant could not have been authorised by the 2nd defendant to drive the vehicle even for a test. Though such a case of express authorisation was put forth in the lower court, it was rightly rejected and was not seriously pressed before me. He cannot also be deemed to have done an act otherwise lawful and authorised in a wrongful or unauthorised manner too, because driving the vehicle was not a work for which he was employed at all by the 2nd defendant. . . . In this view, I find that the 2nd defendant is not liable for the consequences of the wrongful act on the part of the 4th defendant. It follows that the 1st defendant also cannot be made liable because the relationship as between the 1st defendant and the 2nd defendant is only that of principal and agent. The lower court was therefore right in making the 4th defendant alone liable for the damages. "

(3.) THE question then arises whether the 4th defendant, when he took out the lorry for a trial drive after repair, was acting within the scope of his employment. Though it has been concurrently found against by the Courts below, I should say he was. In repairing the steering column of a motor vehicle, a mechanic is expected to take a trial drive in order to see that his work has left the driving mechanism in smooth working. Without a test to that effect he cannot be confident of his repairs. It may be that the 4th defendant had no authority to drive a lorry on public road. But that is neither here nor there. Even if he had been expressly forbidden to drive any vehicle, if he did it for purposes of the work he was engaged for, it would only be doing an authorised job in an unauthorised way. In London County Council v. Cattermoles (Garages) Ltd. (1953) 1 W. L. R. 997 the defendants, who owned a garage, had employed a man as a general garage-hand. Part of his job was to assist in getting cars out of the way of other cars by pushing them by hand. He was expressly forbidden to drive since he had no driving licence. He was asked by the man in charge of the petrol pump to move a van which was remaining stationary in front of the pump which was itself in front of the garage. He got into the van, started the engine and drove it into the highway with a view to turning round there and coming back into the yard behind the petrol pump. While on the highway he came into collision with the plaintiffs' van and damaged it. THE Court of Appeal held that his driving the van was only a wrongful and unauthorised mode of moving the van which was his job, that it came within the scope of his employment and that accordingly the defendants, the garage owners, were liable for his negligence. On the facts found, the 4th defendant was employed to repair the steering column of the lorry. If in the course of that work or at the end of the work he drove the lorry in order to see whether the work he did was right and effective that must necessarily be part of his carrying out the work, and therefore within the scope of his employment, though not authorised. It follows that the 4th defendant, when he drove the lorry, in the course of which the accident occurred, was doing something that was within the scope of his employment and that defendants 1 and 2, who were his masters at the time have to answer for its consequences. THE plaintiff is therefore entitled to recover from defendants 1 and 2 also and this appeal should succeed.