PAULINE D SOUZA Vs. CASSAMALLI JAIRAJBHOY

JUDGEMENT

(1.) The plaintiffs have filed this suit to recover from the defendant the sum of Rs. 4,499-8-0 for the loss and damage caused by the destruction of a Taxi Ford Car No. Y 899 on July 21, 1926. The first plaintiff says in the plaint that she was the owner of the car, and that it was insured with the second plaintiff company. The defendant is the owner of a building called Khalakdina Terrace situate at Gowalia Tank Road, Bombay, and on the day in question a portion of the terrace of the said building consisting of an ornamental structure made of Porebunder stone and resting over the parapet wall on the southern side of the building gave way and fell on the said car which was stationary at the stand on Tejpal Road to the south of the building. The car was completely destroyed, and the driver received serious injuries to which he ultimately succumbed. The plaintiffs contend that the portion of the terrace fell down owing to the defendant's negligence, and that he is liable in damages. The defendant denies negligence, and says that the fall was due to an inevitable accident, and that he is not liable to pay any damages to the plaintiffs or either of them.

(2.) The principal issue in the case is one of negligence. Generally speaking, it is for the plaintiff in an action for negligence to establish (a) that the defendant was under a duty to take care towards the complaining party to avoid the damage complained of, (6) that there was a breach of that duty on the part of the defendant, and (c) that the breach was the direct and the proximate cause of the damage complained of, The onus of proving negligence is on the plaintiff, and the mere proof of the happening of an accident is not as a general rule sufficient evidence to support the action. An exception to the general rule, however, occurs whenever the facts established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendant's negligence. Whenever there is a duty cast upon the defendant to exercise care, and the circumstances under which the injury happened are such that with the exercise of the requisite care no risk would have ensued in the ordinary course of events, the burden is shifted to the defendant to disprove his liability. Every accident does not warrant an inference of negligence, but there may be accidents of such a nature that negligence is presumed from the mere fact of their having happened. The presumption depends upon the nature of the accident. It is usual to refer to such cases under the maxim, res ipsa loquitur. A leading illustration of such cases is Scott v. London and St. Katherine Docks Co., (1865) 3 H. & C. 596 in which the plaintiff, a customs officer, went to the defendants docks on business, and in passing from one door-way to another was injured by six bags of sugar which were hung by a chain falling upon him. The rule was thus stated by Erle C.J. at p. 601:- "There must be reasonable evidence of negligence. "But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care." It was held in Byrne V/s. Boadle (1863) 2 H. & C. 722 that there was prima facie evidence of negligence where a person going along a high way was injured by the fall of a barrel of flour from out of the window of the defendant's warehouse, and that such evidence was sufficient to cast upon the defendant the onus of proving that the accident was not caused by his negligence. In Kearney V/s. London, Brighton &C., Railway Co. (1870) L.R. 5 Q.B. 411 the plaintiff was injured by the fall of a brick from the defendant's bridge. Cockburn C.J. laid down the rule at p. 415 as follows:- Where it is the duty of persons to do their bast to keep premises, or a structure of whatever kind it may be, in a proper condition, and we find it out of condition, and an accident happens therefrom, it is incumbent upon them to show that they Used that reasonable care and diligence which they were bound to use, and the absence of which it seems to me may fairly be presumed from the fact that there was the defect from which the accident has arisen. Therefore, there was some evidence to go to the jury, however slight it may have been, of this accident having arisen from the negligence of the defendants; and it was incumbent on the defendants to give evidence rebutting the inference arising from the undisputed facts;... This case was confirmed in appeal (1871) L.R. 6 Q.B. 759. All these cases have been discussed by Pollock in his Law of Torts, 13th. Edn., and at p. 539 he states the rule as follows:- Where damage is done by the falling of objects into a highway from a building, the modern rule is that the accident, in the absence of explanation, is of itself evidence of negligence, In other words, the burden of proof is on the occupier of the building. If he cannot show that the accident was due to some causa consistent with the due repair and careful management of the structure, he is liable. It follows, therefore, that if the cause of the injury is explicable, the explanation must be given by the defendant. An application was made to me in this case that liberty should be reserved to the plaintiffs to call their evidence in rebuttal after the defendant had led his evidence to disprove his liability, but I was not referred to any case in which evidence in rebuttal was allowed to be led. It is for the plaintiff to lead whatever evidence he wants to with regard to the facts and circumstances relating to the defendant's negligence. There must be some reasonable evidence of negligence. The plaintiff may rely on the undisputed facts and ask the Court to draw the presumption of negligence in his favour, or he may in addition lead such evidence as he likes relating to the defendant's negligence, but he should not as a rule be allowed to lead evidence in rebuttal after the defendant has led his evidence and closed his case. That, however, will not in, any way lessen the burden that may be held to lie upon the defendant. If there is some reasonable evidence of negligence, and there are also facts supporting the presumption of negligence, it is for the defendant to prove facts inconsistent with the negligence or facts which rebut the presumption.

(3.) The next question is, whether the first plaintiff was at all material times the owner of the car in suit. The first plaintiff entered into a hire-purchase agreement in respect of the car with the Otto Supply Company, Ltd., on October 28, 1925, and under the agreement she agreed to pay to the company Rs. 686-8-0 before delivery of possession of the car, and the balance by twelve monthly instalments of Rs. 125 each. She, however, paid in all, at first Rs. 1,000-8-0 which included the sum of Rs. 686-8-0, the excess amount being paid for insurance premium and other charges, and passed twelve hundis of Rs. 125 each in favour of the company, the first being payable one month after date, the second payable two months after date, and so on. She paid in all eight instalments before the date of the accident, and got back the eight hundis which have been put in. After the accident the Otto Supply Company recovered on October 9, 1926, the sum of Rs. 1,537-8-0 from the second plaintiff company with which the car had been insured, and deducting Rs. 500 in respect of the remaining four hundis, the Otto Supply Company paid the balance to the first plaintiff on or before October 18, 1926. The suit was filed on November 25, 1926. Under the hire-purchase agreement the first plaintiff was entitled to terminate the agreement before the car became her property, and it could become her property only after payment of all the instalments per month or on payment of all of them or those that remained payable in a lump. Until then the first plaintiff acknowledged the Otto Supply Company, Ltd., as the owners of the car. She had admittedly not paid all the instalments before the date of the accident, viz., July 21, 1926, so that at that date the car was not her property, and in fact the Otto Supply Co. carried on correspondence with her as owners. On the day of the accident the car was smashed and was a total wreck, and was disposed of on October 6, 1926, by the Otto Supply Co. on behalf of the second plaintiff company for a sum of Rs. 50, which sum counsel for the defendant admitted was the best price that could be obtained for the salvage. On October 18, 1926, the first plaintiff's solicitors on her behalf purported to assign all rights in, and the ownership of, the car to the second plaintiff company. The first plaintiff was, therefore, not, strictly speaking, the owner at the date of the accident, and though she paid off the remaining instalments by October 18, 1926, the car had been sold off and did not belong to her at the date of the suit. The first plaintiff was, therefore, not the owner, strictly speaking, at the date of the suit either. The cause of action, however, accrued to her on the date of the accident, and at that date she was in the position of a bailee. As such she is entitled to maintain an action against a third party who does not claim under the bailor according to Section 180 of the Indian Contract Act. As a bailee she is not the agent of the bailor, and she can sue and claim the full damages for loss due to the alleged negligence of the defendant without prejudice to the rights of the bailor to adjust with her the amount of damages when recovered: see Halsbury, Vol. 1, 2nd Edn., pp. 766, 777; Ramnath Gagoi V/s. Pitambar Deb Goswami (1915) I.L.R. 43 Cal. 733, 742. Counsel for the defendant argued that it was not pleaded in the plaint that the first plaintiff was a bailee, but her legal position is a point of law. Even if she was merely the hirer, she had engaged a chauffeur and purchased accessories to ply the car for hire in Bombay, and under the circumstances, as was pointed out in Croft V/s. Alison (1821) 4 B. & Ald. 590, she could be properly described in the plaint as the owner of the car. As bailee she was in possession. Possession is a title against the wrong-doer, and the presumption of law is that the person who has the possession has also the property. I, therefore, hold that the first plaintiff could maintain this suit as "the owner" of the car.