KONDIBA GOPAL Vs. AMESTREJEAN

JUDGEMENT

(1.) This is a summons taken out by the plaintiff for adding Comptoir National De Escompte De Paris, a bank, as party defendant, and for amendment of plaint and making consequential amendments therein. The suit is to recover damages alleged to be sustained by the plaintiff as the result of his being knocked down by a motor car belonging to the defendant. The accident took place on October 17, 1926. The suit was filed on April 28, 1927. There was correspondence prior to the suit between the plaintiff and the defendant and their attorneys. In that correspondence the plaintiff alleged that the car belonged to the defendant and the chauffeur who was driving the car at the time of the accident was the defendant's servant. The defendant never repudiated these allegations, and his case now is that the plaint never inquired of him whether he was the owner of the car or whether the chauffeur was his servant In the first letter written by the plaintiff's solicitors dated January 8, 1927, the plaintiff averred that the car belonged to the defendant and the chauffeur was his servant, The defendant replied on January 14, in which he stated that the plaintiff's letter was the first intimation to him of the injuries sustained by the plaintiff and promised to write after making inquiries. On January 28, the solicitors for the defendant wrote to the solicitors of the plaintiffs. That letter clearly accepted the position set up by the plaintiff in his first letter as regards the ownership of the car and the relation of the chauffeur to the defendant. In any case, the defendant did not in that letter deny that he was the owner of the car, nor that the chauffeur was his servant, On February 7, the plaintiff's solicitors wrote to the defendant's solicitors repeating their allegation that the car belonged to the defendant, and referring to the fact that the driver was fined by the Honorary Magistrate, To that a reply was sent by the defendant's solicitors in which they did not deny the allegation that the car belonged to the defendant, and as to the fine stated as follows :-"We are fully aware that our client's chauffeur was fined Rs 10, etc,"

(2.) It is clear on the correspondence that the defendant never alleged that the car did not belong to him in spite of the fact that the plaintiff's case was that it did, and never alleged that the chauffeur was not his servant in spite of the fact the plaintiff alleged that he was, and, on the other hand, spoke of the chauffeur as his chauffeur. The correspondence makes it clear that the defendant accepted the position that he was the owner of the car and the master of the chauffeur.

(3.) The plaintiff then filed a suit, The writ of summons was served on the defendant's solicitora on May 30, and on June 6 they wrote to the plaintiff's solicitors alleging for the first time that the car did not belong to the defendant, and that the driver was not employed by him. They further alleged that the car belonged to the bank and the driver was in the bank's employment. Thereafter the plaintiff's solicitors wrote to the bank to let them know whether the car belonged to them, and whether the same was entrusted to th 3 defendant to by used by him on October 17 last for the purposes of the bank, and, if not, whether he was allowed to use the same for his own purposes, and also whether the said driver was employed by the bank or the defendant herein, or whether he was, while driving the car, under the control of the bank or the control of the defendant.