DINBAI R WADIA Vs. FARUKH MOBEDJNA

JUDGEMENT

(1.) THE widow and 4 children of one Rustom Ardeshir Wadia brought an action for loss occasioned to them by his death caused as a result of a collision between a motor cycle belonging to the first defendant and another motor vehicle. Ardrshir Wadia, the deceased, died on 12th July, 1955 as a result of injuries received by him in the accident. On 10th July, 1955 at about 4 p. m. the deceased was riding on the pillion seat of a motor cycle BML 428 belonging to the first defendant. The motor cycle was at that time being driven by the second defendant. It was the case of the plaintiffs that the motor cycle was being driven by the second defendant with the knowledge and consent of and as agent of the first defendant. The second defendant was driving the motor cycle along Cadell Road from Worli to Mahim. according to the plaintiffs, at an excessive speed and in a rash and negligent manner and in doing so dashed against and collided with a motor car bearing No. BML 1069 which was coming from the opposite direction. In consequence of the rash and negligent driving of the second defendant and the resultant collision, the deceased was thrown off the pillion of the motor cycle at some distance with great force and sustained injuries which resulted in his death. The plaintiffs also alleged that the second defendant while driving along Cadell Road was on the wrong side of the road before he collided with the motor car No. BML 1069. According to the plaintiffs the second defendant was driving the motor cycle with the knowledge and consent of the first defendant and as his agent. They also stated in the plaint that the motor cycle was being driven for the benefit and purpose of the first defendant, and on that allegation they contended that both the defendants were jointly and severally liable to pay to the plaintiffs damages for actionable negligence. It was also the case of the plaintiffs that they had been deprived of their means and support and had suffered and were suffering pecuniary loss. At the time of his death the deceased was 32 years old and was according to the plaintiffs a person of sober habits and sound physique. The plaintiffs went on to state in the plaint that the deceased had reasonable expectation of normal and healthy life for another period of 28 years. He was doing business some time prior to his death in shares and stocks in the Bombay Stock Exchange. He was also working as an Insurance Agent, His average earning was Rs. 300/- per month. The plaintiffs claimed in the. suit a sum of Rs. 40,000/- as and by way of damages on account of pecuniary loss caused to them and to the estate of the deceased by his death. They claimed a further sum of Rs. 681/- being the amount expended by them for medical and surgical attendance to the deceased. Stated very briefly, it was the case of the first defendant that he was not liable for the alleged , negligence of the second defendant because the second defendant did not stand to him in the relation of an agent. The defence of the second defendant was that he was going at a very moderate speed along Cadell Road and had slowed down, and it was as a result of the negligent driving of two cars which were coming from the opposite direction that the tragic mishap occurred.

(2.) THERE remains the specific and independent point of the vicarious liability of the first defendant for the negligence of the second defendant. It will be convenient to come to the law of it before I scrutinise the evidence on the point. The law has often been discussed, but perhaps it is just as well to state it. A person may be liable for another's wrong as standing to the other person in a relation making him answerable for wrongs committed by that person in virtue of their relation, though not specifically authorised. The general rule was expressed by Willis J. in Barwick v. English Joint Stock Bank, ( (1867) 2 Ex 259) (A), in a judgment accepted as a classical authority:

(3.) WHO is a servant was the question repeated in the course of the arguments urged by Mr. Joshi on behalf of the first defendant and sought to be answered by reference to some decisions of Courts in England. There are numerous decisions, some of them very recent, where the modern rule has been discussed. "a servant" as stated by Salmond "may be denned as any person employed by another to do work for him on the terms that he, the servant, is to be subject to the control and direction of his employer in respect of the manner in which his work is to be done". In Hewitt v. Bonvin, 1940-1 KB 188 at p. 191 (C), Mackinnon L. J. said that this definition can "hardly be bettered". Able argument was advanced by Mr. R. J. Joshi, learned Counsel for the first defendant, on this essential element of con- trol and in the course of it he drew my attention to some recent decisions I have also been referred to some other decisions by Mr. Chogle, learned Counsel for the plaintiffs. I shall refer only to the most recent of the decisions cited at the Bar. There is a summation of the other cases in the latest edition of Sir John Salmond's Standard work on Torts at pages 101, 102 ;