THE UNITED INDIA FIRE AND GENERAL INSURANCE COMPANY LIMITED UNIT MADRAS MOTOR AND GENERAL INSURANCE COMPANY Vs. THE UNION OF INDIA (UOI) OWNING THE SOUTHERN RAILWAY BY ITS GENERAL MANAGER AND ORS.

JUDGEMENT

(1.) THE third defendant in O.S. No. 140 of 1969 on the file of the Court of the Subordinate Judge, Vellore is the appellant herein. The first respondent, viz., Union of India owning the Southern Railway by its General Manager, Park Town, Madras -3, instituted the suit for recovery of a sum of Rs. 18,323 -19 being the damages incurred under the following circumstances: The Southern Railway owned one tractor with attached trailer bearing registration mark MYD 8748. It was the product of Ashok Leyland and was bought for Rs. 72,000. In 1967, the Railway was. laying a railway line between Salem and Bangalore. This tractor was used in the project for transporting rails : On 21st December, 1967, the tractor was on its way to Chandapur with a load of 25 rails. While so, one Deccan Express Bus came in the opposite direction. The allegation of the first respondent plaintiff in the plaint was that the lorry bearing registration mark MDJ 3588, which was owned by the first defendant (2nd respondent) and was driven by the second defendant (3rd respondent) overtook the Deccan Express Bus, and in so doing, dashed against the tractor and thereby caused heavy damage. This accident, according to the plaintiff (1st respondent), was the result of the rash and negligent driving of the lorry by the second defendant. The second defendant was taken into custody and was prosecuted for rash and negligent driving. He was convicted. As the tractor could not be driven because of the. heavy damage it sustained, it was towed to Messrs Sundaram. Motors Private Limited, Bangalore, who were the authorised dealers and engineers for tractors such as the one owned by the plaintiff -first respondent, and it was repaired at a, cost of Rs. 18,323 -19. The plaintiff -first respondent further stated that the first defendant's lorry was insured with the appellant.

(2.) IN the written statement filed by him, the first defendant admitted that he was the owner of lorry bearing registration mark MDJ 3588 and that at the time of the accident, it was driven by his driver, the second defendant. He, however, disputed his liability to pay any damages as claimed in the plaint, because at the time of the accident, the lorry was driven at a moderate speed. The Deccan Express Bus, which was running in front of it suddenly stopped with the result that the second defendant had to swerve the lorry to. the right wife a view to avoiding collision. After it was stopped by applying the brakes, the plaintiff's tractor ran and collided with the lorry. The damage, according to the first defendant, was very light, and the repairs could have been effected by expending a sum of Rs. 250 only. The appellant, in his Separate written statement, contended that there is no privity of contract between the plaintiff -first respondent on the one hand and the appellant herein on the other, that there was no statutory liability, that the driver of the first respondent -plaintiff was guilty of contributory negligence and that the plaintiff's claim was exaggerated and had no basis. The appellant also contended that the suit was barred by time.

(3.) THE second defendant, who appeared in person, made an endorsement on the back of the plaint stating that he had no objection for a decree being passed against him.