CHAVALI KOTAIAH Vs. ALLA RAMANIAH

JUDGEMENT

(1.) .The first defendant is the appellant. The suit was filed by the first respondent herein for recovery of damages on the ground that the appellant's lorry M.D.G.1003 ran over him at about 2-30 P.M. on 30th October, 1953 and that he was consequently crippled. The first defendant, according to the plaintiff, is the owner of the lorry. The second defendant is the Insurance Company which issued policy in respect of the lorry. The first defendant-appellant pleaded that he was not the owner of the lorry but that his brother-in-law, Koniki Venkatasubbayya, was the real owner and that he was carrying on business under the name and style of Agricultural Transport Company and that the insurance policy was taken by him. The plaintiff made an application for impleading Venkatasubbayya as a party but it was dismissed on the ground that the suit a, against him, if impleaded, would be barred by limitation.The second defendant, against whom (he plaintiff prayed for a decree, supported the case of the first defendant. The Court below, in a very careful judgment, held that the first defendant was the owner of the lorry, that the accident took place as a result of rash and nelgligent driving of D.W. 1 and that the first defendant was liable to pay damages of Rs. 9,000. As against the second defendant the suit was dismissed on the ground that Venkatasubbayya, the proprietor of Agricultural Transport Company was not impleaded as a party. The first defendant has consequently preferred the appeal.

(2.) Shri Venkatarama Sastri, the learned Advocate for the appellant, strenuously contended that his client was not the owner of the lorry M.D.G. 1003, that D.W. 1 did not rashly and negligently drive the lorry and cause the accident thereby and that the quantum of damages awarded was excessive. He contended in the alternative that if the appellant is made liable, a decree should also be passed as against the second defendant having regard to the terms of section 96 of the Motor Vehicles Act. Having heard his arguments carefully, we are inclined to uphold the judgment of the trial Court decreeing the suit against him. On 22nd October, 1954, the plaintiff issued a registered notice (Exhibit A-1) to the first defendant through his Advocate, Sri Y. Sridhara Rao. It was stated in paragraph 1 in unequivocal terms that on 30th October, 1953, at about 2-30 P.M. the incident took place as a result of his lorry M.D.G. 1003 dashing against him. He also stated in paragraph 5 how his right leg was crippled. The reply that was given by the first defendant was marked as Exhibit A-2 , dated 27th October, 1954. The reply notice is in Telugu and is signed by the appellant herein. He did not deny that he was the owner of lorry M.D.G. 1003. He stated that as regards the incident, he had informed the Insurance Company, the 2nd defendant. The oral evidence that was given by him as D.W. 4 that he did not know English, that he did not understand the contents of Exhibit A-1 and that he signed the reply notice which was brought to him for signature by his clerk is not acceptable. The Court below rightly rejected his evidence and relied upon Exhibit A-2 as conclusively admitting that he was the owner of the lorry.

(3.) The plaintiff had also issued a notice marked as Exhibit A-3, dated 22nd October, 1954, to the and defendant-Insurance Company. In paragraph1 it was clearly stated that the first defendant was the owner of the lorry M.D.G. 1003. No exception was taken to this fact in the reply issued by the 2nd defendant, which was marked as Exhibit A-4. The evidence of D-W. 1, the lorry driver, is to the effect that Koniki Venkatasubbayya was the real owner and that he was his driver. Koniki Venkatasubbayya, the brother -in-law of the first defendant, also deposed to the same effect. The learned Subordinate Judge placed no reliance on the evidence of D.Ws. 1, 2 and 4 on this point. We are also inclined to take the same view. No books of account have been produced by the first defendant or Koniki Venkatasubbayya to show that the lorry belonged to Koniki Venkatasubbayya. It is admitted that the first defendant owns two lorries and nine buses, It is likely that he would have maintained books of account regularly. From the non-production of the account also, we draw an inference that he has not established satisfactorily that he was not the owner of the lorry. As regards the incident, the learned Subordinate Judge has analysed the evidence and accepted the evidence of P.W.s 1, 2 and 4. He rejected the evidence of the driver examined as D.W. 1. There can be no doubt that the plaintiff, who was going to school, was knocked down by the lorry as the driver was proceeding at a high speed. We confirm the finding of the learned Subordinate Judge that the incident took place as a result of the rash and negligent driving of D.W. 1. As regards the quantum of damages, no sufficient reasons are given for interfering with the finding of the Subordinate Judge. In the result, we hold that the appellant is certainly liable to pay damages to the plaintiff as the owner of the lorry M.D.G. 1003.