SITABAI MANGESH KOLI Vs. JONVEL ABRAHAM SOLOMAN

JUDGEMENT

(1.) THIS First Appeal by the original plaintiff raises some short question of law arising under the Motor Vehicles Act 1939 in the following facts of the case:-

(2.) THE plaintiff/ appellant is the mother of deceased Prakash Mangesh Shivdikar, who was travelling in the Auto-Rickshaw No. MHT 6265, which was proceeding towards Thane on the Pune - Thane Road on 12/05/1974, at about 6. 00 a. m. A motor truck bearing No. MEL 4771 was coming from Thane and was proceeding towards Pune. The respondents in the Appeal are the original defendants. The 1st defendant Solomon was driving the Auto-Rickshaw at the relevant time; the 2nd defendant Bamane is admittedly the owner of the Auto-Rickshaw and the 3rd defendant is the Indian Mercantile Insurance Co. Ltd. , which is the insurer of the vehicle. As a result of the negligent driving of the 1st defendant, Solomon, the autorickshaw dashed against the motor truck coming from the opposite direction and Prakash, the son of the appellant/ plaintiff, died instaneously. The appellant claimed damages of Rs. 25,000. 00 in that behalf. Special Civil Suit No. 207 of 1977 was filed before the learned Civil Judge, Junior Division, Thane. Despute the service of notice, the 1st defendant Solomon did not file any written statement. He, at times, appeared in the Court, but did not examine himself as a. witness. Defendants Nos. 2 and 3 appeared at the trial and filed their common written statement at Exh. 36. Their plea, in short, is that though defendant No. 2 was admittedly the owner of the said auto-rickshaw at the relevant time, defendant No. 1 Solomon was not driving the rickshaw during the course of his employment with defendant No. 2. According to defendants Nos. 2 and 3, the driver of the auto-rickshaw was one Prabhakar Shetty, who was in the service of the 2nd defendant. The said Prabhakar Shetty, in utter disregard of the instructions given to him by defendant No. 2, permitted defendant No. 1 to drive the rickshaw. The 2nd and 3rd defendants, therefore, contended that for this action on the part of the employee of the 2nd defendant, viz. Prabhakar Shetty, defendant No. 2 would not be liable and, therefore, there is no question of defendant No. 3 being liable.

(3.) THE learned trial Judge framed the necessary issues with his findings thereon as below: