STANES MOTORS, LTD BY MANAGING DIRECTORS T STANES AND COMPANY LTD Vs. VINCENT PETER, MINOR BY HIS NEXT FRIEND AND MOTHER AND SECOND RESPONDENT HEREIN MRSRUTH AARON PETER

JUDGEMENT

(1.) This appeal arises out of a suit to recover compensation under the Fatal Accidents Act. The plaintiffs are the widow and the infant son of the deceased whose death was caused by the alleged negligence of the appellant's motor-driver, one Babjee. At the time of the accident the car was being driven by a fitter in the employment of the appellants, Babjee being in the car reclining in the back seat. He says he was asleep at the. time of the accident and had no knowledge that the fitter was driving the car, until he was aroused by the shock of the impact. This very improbable story has been disbelieved by the lower Court. There can be no doubt that Babjee entrusted the driving of the car to the fitter who was not authorised by his employers to drive their car and "who, on his own admission, had no experience as a driver. Indeed the learned Counsel for the appellants does not dispute that the accident was due to the negligence of the driver. The substantial question argued is whether his negligent act was committed by the driver while he was in the course of his employment.

(2.) The true facts to be derived from the evidence are that the car was taken by the driver to Mr. Catling, a customer of the appellant-firm, whose car was undergoing repairs, on Saturday the 23 April 1932; and that the instructions of the manager of the appellant-firm, Mr. Dupan, to the driver were that he should bring the car back to Mr. Dupan's bungalow when Mr. Catling had finished with the car. The car was taken at 5-30 P.M., that evening to Mr. Catling and Mr. Catling used it till 9-30 P.M., that night. The lower Court has accepted the driver's story that Mr. Catling told him to bring the car the next morning (sunday) at eight O clock. This evidence was. not contradicted by any other witness, and the probability is that the story is true. Having finished with Mr. Catling at 9-30 P.M., on Saturday night the driver took the car back to the appellants works and drove away with it at about 10 P.M., This is according to the evidence of the watchman. As the works were closed at 6 P.M., the car could not be left there in the garage for the night. The driver went to his home in the car, had his food, and drove off to a drama, returning home at 2 A.M., on Sunday morning. He slept in the car that night. That is the driver's story.

(3.) However that may be, one thing is quite clear that on Sunday morning he started off at about 7-30 A.M., in the direction which led to Mr. Catling's bungalow about a mile distant, and that the accident happened while he was on the way. As already stated the driver was taking the car to Mr. Catling in accordance with his instructions. He ought to have gone to Mr. Dupan's bungalow on the previous night. But the circumstances that he had deviated from the strict order of his master will not relieve the appellants from liability for his negligence if at the time of the negligent act he was in the course of his employment.