' This is a suit for the recovery of Rs, 1,62,000 against the three defendants jointly and severally. The facts leading to the filing of the above suit shortly, are that late Muhammad Umar son of Hussain Bux (hereinafter referred to as the deceased) died as a result of injuries sustained in a road accident which occurred near Jehangir Masjid, Patel Para, Jehangir Road, Karachi on 16-9-1975.
The truck involved in the accident bore registration No, KAU-6635 admittedly belonged to defendant No,
1. At the time oi the accident defendant No, 2 was the driver of the said truck and was servant and employee of defendant No, I. The deceased on the aforesaid date, namely on 26th September, 1975 at about 3-45 p.m. Was standing on the footpath of the shops of Jehangir Masjid on Jehangir Road, Karachi, when the aforesaid defendant No, l's truck hit against him and knocked him down causing serious injuries to his person. The deceased was immediately removed to the Civil Hospital but he died at 9 p.m. On the same day.
(a) It has been averred that the death of the deceased was caused by rash and negligent driving of the truck and that defendant No, 2 was the driver of the said truck. It has been also averred that defendant No, 2 made a statement to the Police that on the day of the accident, he parked the truck outside the Jehangir Masjid and himself went inside the mosque to say his prayers but when he came out he found that the truck had hit against one of the shops of the mosque and that on making enquiry he learnt that in his absence defendant No, 3 had driven the truck which after knocking the deceased had hit against a shop. It has further been averred that at the time of the accident defendant No, 2 was the servant and employee of defendant No, 1 and that as the driver of the truck, it was his duty to see that in his absence nobody should tamper with the driving mechanism of the vehicle in his charge. It has further been averred that the very fact that defendant No, 3 had driven the truck in the absence of defendant No, 2 shows gross negligence on the part of the latter, and that, the defendants cannot escape the responsibility of the accident, and that all the defendants are jointly and severally liable. It has further been averred that the deceased was 38 years of age at the time of the accident and was earning Rs, 600 per month and was enjoying good health, and that the deceased left behind in addition to the plaintiff, eight children, all minors mentioned in para. 8 of the plaint. On the above averments, the widow of the deceased has filed the present suit.
(b) Defendant No, 1 has filed a written statement in which, inter alia, it has been averred that the suit is not maintainable in law, the plaint does not disclose any cause of action against the answering defendant and that the suit is bad for misjoinder of defendant No,
1. It has not been denied that the Truck Bearing No, KAU-6635 belonged to the answering defendant. It has been averred that admittedly defendant Nos, 2 was not driving the truck and the alleged accident was caused by defendant No, 3, who was not in employment of defendant No,
1. It has further been averred that on cause of action has arisen to the plaintiff against the answering defendant as the act which constituted the basis of the cause of action was not admittedly committed by defendant No, 2.
(c) Defendant No, 2 has also filed a separate written statement in which, inter alia, the pleas relating to the maintainability of the suit, non-disclosure of cause of action and misjoinder of the cause of action have been taken. On merits it has been averred that defendant No, 3 unauthorisedly and illegally drove the truck and caused the accident in the absence of defendant No, 2 at a time when the latter was offering his Juma prayer in Jehangir Masjid. It has been averred that defendant No, 3 managed to start the truck by joining the wires as its key was with the answering defendant. It has further been averred that defendant No, 2 came to know about the accident after Juma prayer at about 3-15 or 3-30 p.m. And that the injured was taken to the Civil Hospital, where he was given treatment and sent back to his home at about'8 p.m. It has also been averred that defendant No, 2 remained with the injured during this time and after leaving the injured at home at about 8-30 p.m. He went away to his house ; that defendant No, 2 has not committed any act of negligence and he is not liable for the act of defendant No, 3 and that the age of the deceased at the time of his death was about 50 or 55 years. On the basis of the above averments defendant No, 2 has denied his liability.
(d) Defendant No, 3 has also filed written statement, wherein it has been averred that the answering defendant had never driven any vehicle belonging to defendant No,
1. It has been averred that defendant No, 3 has been falsely implicated in the accident after 3 days of the accident at the instance of defendant No: 2, that defendant No, 2 had made false statement to the Police with mala fide intention to save himself. On the basis of the above averment defendant No, 3 has denied his personal liability.
(e) On the basis of the above pleadings the following issues were framed : "(1) Whether the suit is not maintainable in law ?
(2) Whether the plaint does not disclose a cause of action against the defendants ?
(3) Whether the suit is bad for misjoinder of defendant No, I ?
(4) Whether the death of Muhammad Umar was caused by rash and negligent driving of truck No, KAU-6635.
(5) Whether at the time of accident the truck was being driven by defendant No, 2 or defendant No, 3 ?
(6) Whether defendant No, 3 had unauthorisedly absence of defendant No, 2 ? If so, its effect defendants on the plaintiffs' claim.
(7) What was the age and income of the dec eased at the time of accident ?
(8) Whether the defendant No, 2 was guilty of negligence or responsible for the accident ?
(9) What should the decree be ?"
2. (a) The learned counsel for the plaintiff has taken up Issues 4, 5, 6 and 8 together and I also intend to take up the above issues together. In support of the claim the Plaintiff has examined herself as P. W. 3 (Exh. 12) and has also examined four more witnesses, namely Khurshid .Anwar P.
W. (Exh. 10), Khalil Ahmad son of late Muhammad Umar P. W. 2 (Exh. 11), Itrat Hussain Khan P. W. 4 (Exh. 13) and Muhammad Abid P. W. 5 (Exh. 14). P. W. 1 was related to the deceased being the husband of the deceased's wife's sister. He has deposed that he was about 10-12 paces away from the scene of the accident, which took place on 26th September, 1975 at about 3-45 p.m. In front of a shop out of Jehangir Masjid by the side of Jehangir quarters. He has further stated that the deceased had gone to a shop at Jehangir Road to get change of a rupee in order to give some change to his son Khalil P. W. 2 (Exh. 11). He has also deposed that he saw a truck bearing No, KAU- 6635 coming from west side and turning towards east side and dashing against the deceased and knocking him down and then dashing against the platform of about 1 or 2 feet height of a shop outside the mosque. He has further stated that the deceased was previously injured and was bleeding profusely from the chest and hip. He has also deposed that at the time of the accident the truck was being driven by defendant No, 2, who was teaching driving to defendant No, 3 and that after the accident the above defendant No, 2 had run away from the scene of the accident. In the cross-examination the above witness has admitted that he resided in Jehangirabad which was about 2 miles away from the spot where the accident had taken place. He has also admitted that there were some people reciting Holy Qur'an in the mosque at the time of the accident. He has further stated in the cross-examination that he was not sure but he thought that the steering of the truck was on the right side of the truck and that defendant No, 3 was sitting into the lap of defendant No, 2 but he could not say whether defendant No, 3 was sitting more on the right side or the left side. P. W. Khalil Ahmad, who is the son of the deceased and whose age was 12 years at the time of recording of his statement, has deposed that at the time of the accident he was present and had witnessed the same. He has further stated that he was getting change of rupee from the shopkeeper and that his father was at a little distance away from his. He has also deposed that in the truck two persons were sitting and one was teaching and the other was learning the driving and that the truck was going .Around in the ground. He has also stated that the truck came from the ground side and struck his father who was standing nearby the shop from where he (Khalil) was getting change. He has further deposed that immediately after the accident both persons sitting in the truck left the scene of the accident, and that his father was carried to the hospital from where he was brought bask on the same day and died within half an hour after reaching home. In the cross-examination he has stated that at the time of the accident his maternal uncle Khurshid (P. W. 1), Abid (P. W. 5) and one Sabir were also near the scene of accident. He has further stated that he had seen the persons who were sitting in the truck and running: away but the truck was empty and did not contain garbage and that police had recorded his statement. P. W.
Muhammad Abid, who is also the husband of the deceased's wife's sister, has deposed that he was purchasing some goods from a nearby shop where the accident had taken place. He has further deposed that the driver of the truck was imparting training for driving to some one and that he had seen that he had already given two rounds to the learner. He has further stated that he had seen the occupants of the truck and that he could identify them. He has also stated that the deceased was also getting change for his child where I was getting some goods on the shop. He has further deposed that as he had completed the shopping, he was informed that a truck had overrun some body. In the cross-examination he was asked to produce his ration card in order to substantiate his assertion that he resided near the place of the accident. He has not produced the ration card (Exh.
14/2) but has also produced his identity card (Exh. 14/1) which bears the address of Quarter No, 11-H, Jehangir West Karachi. In the cross-examination this witness has deposed that his house is located about 100 yards from the place where the accident had taken place and that in the criminal Court defendant No, 2 was facing prosecution for committing the accident and that prosecution case was also going on against defendant No,
3. However, when this witness was confronted with his statement made by him in the Criminal Court (Exh. 14/3) he admitted that he had arrived at the scene of the accident after the accident had already taken place. He has further stated that he had gone to the police station at night and lodged the complaint. He has admitted that in the Magistrate's Court he had identified defendant No, 3 as the person driving the truck. When he was asked as to whether his statement made by him in the Magistrate Court that the accident was committed by defendant No, 3 was correct or his statement in the High Court to the effect that the truck was driven by defendant No, 2 who was training defendant No, 3, was correct, his answer was that both the statements were correct. P. W. 3, the plaintiff has deposed that at the time of the accident the age of her husband was 34-35 years and that he was getting Rs, 450 to 500 per month from Buxly Paints and that the deceased used to earn Rs, 150 to 175 for doing private painting works. She has also deposed that the deceased used to spend Rs, 50 per month on himself and used to pass on the remaining balance to her. P. W. 4 Itrat Hussain, who is the factory manager of Buxly Paints, has proved Exh. 3/1, a certificate containing the details of salary and allowances and also Exh. 13/2 a photostat copy of the payment sheet of Buxly Paints Ltd. In respect of the payments made to the deceased up to September, 1975. The above witness has deposed that the deceased was drawing total emoluments of Rs, 491.10 per month which amount did not include bonus and that the deceased was employed in the factory for 20 years 6 months. In the cross-examination he has stated that the deceased was employed first on the salary of Rs, 80 per month when he was about 18 years old. He has also deposed that the lowest age for employment in his factory was 17 years.
(b) The defendant No, 1 has. Examined two witnesses, namely, D. W. 1 Muhammad lshaq Baloch (Exh. 15) and D. W. 2 Sultan Masud S. I. P. (Exh. 16). D. W. 1 has deposed that defendant No, 1 was the driver of the truck and that defendant No, 3 was not employed by defendant No,
1. He has also deposed that defendant No, 2 was never arrested nor refuse van bearing No, KAU-6635 was ever impounded by the Police. He has also stated that defendant No, '1 never received any complaint about defendant No, 2, and that defendant No, 1 came to know about the accident mentioned in the plaint of the suit after the service of the summons of the suit and upon receiving comments from the Vehicle Inspector on the contents of the plaint. In the cross-examination the above witness has stated that the drivers working on refuse collecting vans are subject to disciplinary control of the Health Officer and that it is the duty of the driver to report about the accident after it takes place with the defendant No, l's vehicle and that defendant No, 1 has not taken any disciplinary action against defendant No,
2. D. W. 2 Sultan Masud S.
1. P. Has deposed that in September, 1975 he was posted at the Jamshed Quarters Police Station and that he lodged the F. I. R. In respect of the accident against defendant No, 3 who used to reside near Jehangir Masjid and that he has submitted a challan against defendant No, 3 in the Court of A. C. M. Jamshed Quarters. He has further stated that the truck driver involved in the accident was K. M. C. Employee and that the driver of the truck was offering prayers in the mosque at the time when the accident had taken place and that he impounded the truck in question and got it surveyed but subsequently it was released on the order of the Court. In the cross-examination he has produced Exh. 16/1 dated 27-9-1975 which is a letter written by D. W. 2 to the Officer Incharge K.
M. C. M. T. Section and Exh. 16/2 reply dated 29-9-1975 and Exh. 16/3 photostat copy of D. W. 2's letter dated 29-9-1978. In -his cross-examination D. W. 2 has stated that after the lodging of the report at 1-20 a.m. On 27-9-1975 he immediately went to the place of accident in order to investigate where he gathered from the statements of defendant No, 2 and other witnesses that defendant No, 2 was offering prayer at the time of the accident. He has also stated that defendant No, 2 resided in Patel Para near Jehangir Masjid. He has further stated that he cannot exactly remember whether the truck was impounded and was released thereafter on the order of the Court. He has also stated that he was the only person who investigated the case and submitted the challan against defendant No, 3 and not against defendant No,
2. He has denied the suggestion that defendant No, 2 was not implicated because of the pressure exercised by defendant No, 1.
(c) Defendant No, 2 has examined himself (Exh. 17) and also one Abdul Razaq (Exh. 18). Defendant No, 2 has deposed that the accident had taken place on Friday in the month of Holy Ramaz-an near Jehangir Masjid at about 3 p.m. He has further deposed that he had offered Juma prayer in the aforesaid mosque on the day of the accident and that he had parked the truck outside the mosque and that there was no door in the truck which could be locked. He has further stated that he had just offered his prayer and was reciting Darood-o-Salam when he heard the noise of the accident. Thereupon, he came out and saw that the truck was no longer parked at the place where he had parked it before entering into the mosque. He has further stated that he saw the deceased sitting in a rickshaw with some local residents, who was taken to the Civil Hospital and that he also accompanied the injured to the hospital. He has further deposed that he did not know who had driven the truck but subsequently he discovered that the truck was driven by defendant No,
3. He has also stated that the truck could be started without key by joining the wires. The learned counsel for defendant No, 1 has also cross-examined this witness and in reply to his cross-examination the above witness has affirmed that he was not permitted to use the truck for his personal purposes or to allow any one to drive the truck or to teach any one to drive it. In the cross-examination to the learned counsel for the plaintiff he has denied the suggestion that he was putting up in Patel Para at the time of the accident but stated that he was living at Manghopir Road. He has further stated that he used to live in Golimar in a Jhugi where he still resided. He has further stated that he does not know as to whether defendant - No, 3 belongs to his native place. He has also stated that there was no fixed timing for driving the truck but he was supposed to be on duty till the of time collection of the entire refuse of the area where his duty was assigned. He has further stated that the accident had taken place between 3 to 3-30 p.m. And that there was no lock in the door of the truck because it was broken. He has affirmed that when he parked the truck he did not put any lock in the door because there was no lock. He has further stated that when he parked the truck he had applied the hand-brake and had also put the truck in gear. He has further stated that the wire of the ignition switch was inside but it could be taken out and that the K. M. C. Motor Vehicle Inspector used to check the vehicle from time to time. D. W. 4 Abdul Razaq has deposed that defendant No, 2 was offering prayer with him in the same row and that he and defendant No, 2 were reciting Darood-o-Salam after the prayer and that they came out together from the mosque and saw that the accident had taken place. In the cross-examination the above witness has stated that he went to the mosque at about 2 p.m. And that defendant No, 2 was also in the mosque and that they offered prayer at 2-45 p.m. He has also deposed that he has been residing in Patel Para for about 10 years.
3. (a) It has been urged by the learned counsel for the plaintiff that even if the version of the plaintiff's witnesses P. W. 1, P. W. 2 and P. W. 5, namely that defendant No, 2 was teaching driving to defendant No, 3 at the time of the accident, is to be ignored/disbelieved, the plaintiff's case still stands proved by the defendants' evidence. In support of his above contention he has relied upon the following portion of para. 4 of the plaint, which reads as follows :- "(4) . o ' The plaintiff submits that at the time of accident defendant No, 2 was the servant and employee of defendant No,
1. As the driver of the truck it was his duty to see that in his absence nobody should tamper with the driving mechanism of the vehicle in his charge. The very fact that defendant No, 3 had driven the truck in the absence of defendant No, 2 shows gross negligence on the part of the latter defendant who cannot escape responsibility for accident. All the defendants are jointly and severally liable on the plaintiff's claim."
(b) He has further urged that defendant No, 2 in his cross-examination has admitted the fact that the lock of the truck's door was broken and, therefore, he could not lock the truck at the time of parking it outside the mosque. His contention was that the defendant No, 1 by parking the truck unattended without locking for more than 1 hours committed an act of gross negligence within the course of his employment and that the Vehicle Inspector of defendant No, 2 whose duty was to examine vehicles from time to time permitted the truck in question with the broken lock was also guilty of gross negligence. On the other hand, the learned counsel for defendants Nos, 1 and 2 has urged that the plaintiff has failed to prove that defendant No, 2 was in fact teaching driving to defendant No, 3 and, therefore, the plaintiff has failed to prove her case. It is true that P. W. 1 has not given any plausible explanation as to how he happened to be near the place of the accident at the time of the accident when admittedly he resided at a place, the distance of which was about 2 miles from the place of the accident. Furthermore, he is closely related to the deceased being the husband of the deceased's wife's sister whereas P. W. 5 Muhammad Abid in his cross-examination has admitted that he reached the place of the accident after the accident had taken place. P. W. 2 Khalil Ahmad whose age at the time of the accident must have been about 9 years (as he had given his age on 31st October 1978 as 12 years), in his deposition as pointed out hereinabove has stated that he was taking change of a rupee from the shopkeeper and that his deceased father was standing a little distance away from him, whereas P. W. 1 has stated that the deceased was taking change of the rupee in order to pay to P. W.
2. This witness has also stated as pointed out earlier that at the time of the accident his maternal uncle, Khurshid, Abid and Sabir were also near the scene of the accident which statement may not be correct. On the basis of the oral evidence on record and after seeing the demeanour of defendant No, 1 I am inclined to take the view that defendant No, 2 might have been offering prayer in the mosque at the time of the accident as it was the month of Ramazan and from the appearance of defendant No, 2 it appears that he offered regular prayer. The contention which was urged by the learned counsel for the plaintiff was that even if it is to be disbelieved that defendant No, 2 was teaching driving to defendant No, 3, the negligence on the part of the defedant No, 1's employees stands proved by the evidence on the record and that the plaintiff is entitled to a decree. It is true that the burden of proof rests on the plaintiff but once the evidence has been recorded and it is before the Court, then the question on whom initial burden of proof was whittless away. In the instant case, the plaintiff has pleaded as quoted hereinabove from para. 4 of the plaint that as the driver of the truck it was the duty of defendant No, 2 to see that in his absence nobody should tamper with the driving mechanism of the vehicle in his charge and that the very fact that the defendant No, 3 had driven the truck in the absence of defendant No, 2 shows gross negligence on the part of the latter defendant and that all the defendants are jointly and severally liable on the plaintiff's claim.
(c) It is an admitted position that the accident had taken place on the day and at the time mentioned in the plaint. It is also an admitted position that the truck in question was involved in the accident causing death of the deceased. The only question which requires consideration, is as to whether there was any negligence on the part of defendant No, l's employees in the course of their employment to warrant the imposition of tortious liability on defendant No,
1. Defendant No, 2 in his deposition has admitted that the lock of the door of the truck was broken and that he had parked the truck unattended. According to Abdul Razaq Exh. 18 he entered into the mosque at 2 p.m. When defendant No, 2 was already in the mosque. Defendant No, 2 has deposed that the accident took place at 3 to 3-30 p.m. So, on the basis of the above evidence, it can be inferred that the truck remained unattended for about hours. In my view this was an act of negligence on the part of defendant No, 2 keeping in view the fact that it is not uncommon that unauthorised persons tamper with vehicles. Defendant No, 2 as a prudent person was supposed to have known the above risk.
(d) It was urged by the learned counsel for the defendant No, 1 that even new cars, of which doors are locked are stolen and, therefore, no negligence can be attributed to defendant No, 2, whereas the learned counsel for defendant No, 2 has urged that as defendant No, 2 had parked the truck outside the mosque in a crowded locality, there was no possibility of the commission of any theft and that there was no negligence on the part of defendant. No,
2. It is correct that even the vehicles of which doors are locked are stolen but one cannot overlook the fact that tampering with a vehicle having no lock in the door and having no person to attend is easier than that of a vehicle which is locked. The learned counsel for defendant No, 1 had cross-examined defendant No, 2 but had not challenged the veracity of his statement to the effect that the lock of the door of the truck was broken and that vehicles were regularly inspected by the Vehicle Inspectors of defendant No, 1.
The above statement of defendant No, 2 was not challenged by any of the parties to the suit. In my view there was also negligence on the part of the Vehicle Inspector to allow a vehicle on the road when there was possibility of its being parked on the road unattended. It may be observed that the learned counsel for defendant No, 1 did not even suggest to defendant No, 2 that he was not authorised to park the truck for offering prayer while on duty.
4. (a) The learned counsel for the plaintiff in support of his contention that the negligence on the part of defendant No, l's employees makes the defendant No, 1 liable jointly and severally for the tort in question, has referred to the cases of Martin v. Stanborough (1), Parker v. Miller (2), Carinarthenshire County Council v. Lewis (3), Hyder and another v. BurmahShell Oil Company of India Ltd. (4). Whereas the learned counsel for defendants Nos, I and 2 have referred to the cases of Haria and others v. Mst. Basant KIWI' and others t5), Keppel Bus Co. Ltd. v. Saad Bin Ahmad (6) and Sadruddin Ansari v. Haji Dost Ali and others (7).
(b) Reverting to the first case of 41 T L R, it may be mentioned that in the above case the defendant, who owned 6 cylinder Buick motor car and had employed a Chauffeur let the case in the charge of the Chauffeur who went away to get his dinner leaving the car unattended. Before going away he had applied hand-brake and placed a block of wood under the near front wheel. Shorty afterwards a boy named Ham Shaw aged 10 years said to be suffering from moral insanity climbed into the car. The car then moved backward down and struck the wall of the plaintiff damaging the same.
The plaintiff brought an action for the recovery of damages. This was decreed by the County Court Judge. Upon appeal it was held by the Court of Appeal that when a person leaves a motor car unattended on a fairly steep slope in a public highway with the brakes out of order and with only an easily removable block of wood to keep the car in position, so that the car could easily be started downhill by any mischievous person, constituted evidence of negligence. The judgment of the County Court Judge was affirmed though it was urged that the accident had taken place because of the mischievous act on the part of a stranger, and though it was not proved how the car had stated going down the hill.
(c) Referring to the case of Parker v. Miller, it may be observed that the facts of the above case were that the defendant was the owner of a motor car. He frequently allowed a friend of his to drive it. On the day of the accident, the defendant got out of the car and allowed his friend to drive it to the latter's house which was on a road with a very steep gradient. The defendant's friend left the car in. The road outside the house and after half an hour the car started down the hill and crashed into the area of the plaintiff's house. The plaintiff brought an action for damages in the County Court. The County Court Judge held that the defendant's friend was negligent and that the defendant was responsible for such negligence and he awarded to the plaintiff damages. Upon appeal, the Court of Appeal affirmed the Judgment of the County Court Judge and held that the fact of the car having run down the hill of itself when it was left unattended, was sufficient evidence of negligence, and that, although the defendant was not in control of the car when the accident happened, yet as he had the right of control .There was evidence on which the Judge could find that the defendant was responsible as principal.
(d) In the case of Carmarthenshire County Council v. Lewis, the facts were that a 4-year old boy attending a nursery school under the Management of the appellant Council as an education authority strayed from the premises on to a public highway and the respondent's husband, who was driving a
(1) 41 TLR 1 (2) 42 T L R 408
(3) 1955 LRAC 549 (4) PLD 1951 Sind 24
(5) 16 I C 491 (6) 1974 Law Notes 554
(7) PLD 1968 Kar. 673 lorry, struck a telegraph post in avoiding him (boy) and the driver was killed. The respondent sued the Council for damages alleging that the death was caused by their negligence or that of the teacher who had left the child temporarily unattended. In the above case, it was proved that the teacher who was in charge of the class in which the boy in question was studying, had to leave the class for attending an injured boy in the adjoining class. It was held that by the majority of the Judges of the House of Lords (Lord Goddard, Lord Reid, Lord Tucker and Lord Keith of Avonholm, Lord Oaksey dissenting) that the appellant Council were liable to the respondent in damages since the unexplained fact that in the temporary absence of the teacher (who on the evidence was not negligent) it was possible for such a young child to wander from the school premises into highway through a gate which was either open or very easy for him to open, discloses negligence on their part. It was also held unanimously that an analogy with the liability relating to the liability for animals straying on the highway was inapplicable to the aforesaid case. It may be observed that in the Courts below the case was argued and decided entirely on the question of the alleged negligence on the part of the teacher, which finding was not concurred to by the House of Lords but notwithstanding that it was held that the appellant Council was liable. However, Lord Oaksey gave dissenting Judgment for the aforesaid reason.
(e) Reverting to the case of Hyder and another v. Burmah-Shell Oil Co., it may be stated that the driver of a truck was forbidden by the defendant company to allow anyone also to drive the truck in the course of his employment but the driver allowed another person to drive and the truck ran into a camel cart killing the camel and injuring the driver besides damaging the cart. It was held by Constantine, J. (as his Lordship then was) that the master was liable for the negligence of the servant inasmuch as though the driver was guilty of a breach of duty to the master the accident occurred within the scope of his employment. It was further held that the driver owed a duty both to the user of the road and to his master.
(f) In my view from the above rulings the following principles are deducible :- B
(i) That if owner or his licensee or his employee leaves a vehicle with some mechanical defect in it on a public highway and if the vehicle starts moving by the intervention of a stranger causing injury to persons or property, the owner incurs tortious liability.
(ill That if an owner or his licensee or his employee leaves a vehicle on a public highway with a very steep gradient unattended and if the vehicle starts downward for an unexplained reason causing injury to persons or property the owner incurs tortious liability though the vehicle was not in the actual control of the owner.
(iii) That a vehicle parked unattended though tampered with by a stranger is deemed to be in control of the owner by virtue of his right to have control over it.
(iv) An unauthorised act on the part of an employee to allow a third person to drive a vehicle against the instructions ,of the employer does not render such an authorised act, an act outside the employment as to furnish a defence to the employer against his tortious.
(v) The occupier of the property abutting to a public highway owes a duty to the persons driving vehicles to prevent straying of a child of tender age on to the highway as to render the use of the same unsafe.
(vi) That rules relating to the tortious liability of an occupier of the property adjoining to a highway in respect of straying animals of (Mansuntar Nature) on to the highway cannot be applied to a case of straying of a child of tender age from the premises on to a highway.
(vii) If a driver of a vehicle is killed or injured which trying to save a child of tender age who found his way on a public highway from the premises adjoining to the highway because of the negligence on the part of the occupier of such premises, the legal heirs of the driver or the driver as the case may be, can successfully sue the occupier of such premises under the law of tort.
(viii) When a child of tender age like 3 or 4 years, etc. Found his way on to a highway from the premises adjoining to the highway, the burden of proof that there was no negligence on the part of the Occupier of the premises is on the occupier and not upon the aggrieved party.
5. (a) Reverting to the cases cited by the learned counsel for the defendants, namely the ease of Hails and others v. Mst. Basant Kumar, it may be stated that in the above case it was held that in order to establish civil liability under Act XIII of 1855 against any person, it must be clearly proved either that he actually committed the wrongful act himself or at least, that he actively aided or abetted its commission and so took part directly in causing it. It was further held that was not sufficient to say that he knew that the act was likely to be committed or that it was committed in the prosecution of a common object. The facts of the above case are distinguish, able inasmuch as in the above case persons were tried under the Indian Penal Code for the criminal offences of causing death to a person and causing injuries to certain other persons. The widow of the person killed brought an action for the recovery of damages. In that context it was held that the plaintiff cannot succeed against the defendants who had not actually taken part in the killing of the deceased.
(b) Referring to the case of Keppal Bus Co. Ltd. v. Saad Bin Ahmed, it may be stated that in the above case the bus conductor committed assault on a passenger causing injury. It was held by the Privy Council while allowing the appeal of the defendant in the suit that the act of assault was not an act in the course of master's employment and that commission of assault was not part of due performance of the conductor's duty. The facts of the above case are also distinguishable inasmuch as in the instant case admittedly the acts of negligence were committed by defendant No, l's employees in the course of employment.
(c) Reverting to the case of Saruddin Ansari v. Haji Dost Muhammad and others, it may be observed that the question before a Division Bench was as to whether the Municipal Committee of Hyderabad was liable on account of damage suffered by the plaintiff because of the deterioration of the condition of a Victoria and Tonga, it was held that it was not liable. It was further held that actionable negligence consists in neglect of use of ordinary care or skill towards a person to whom one owes duty of observing such ordinary care or skill. In my view, the above case is also distinguishable inasmuch as it cannot he urged by defendant No, 1 that it owes no duty to the users of the public roads while permitting its vehicles to .Ply on the same.
6. (a) As defendant No, I is a statutory Corporation, the question which agitated in my mind was as to whether a Corporation can be equated with an ordinary employer for the purpose of imposing a vicarious tortious liability. I asked the learned counsel for the parties to address me on this aspect of the case. Mr. Mushtaq Hussain, learned counsel for the plaintiff has invited my attention to para. 178 from the Halsbury's Laws of England, 3rd Edn., Vol. IX; p. 87, which reads as follows :- "178. Torts committed by a Cotporation.-A Corporation aggregate is liable to be sued for any tort, provided that (1) it is a tort in respect of which an action would lie against a private individual (e);
(2) the person by whom the tort is actually committed is acting within the scope of his authority (f) and in the course of his employment as agent of the corporation (g) ; and (3) the act complied of is not one which the corporation would not, in any circumstances, be authorised by its constitution to commit (h). Thus an action will lie against a corporation for conversion (i), for trespass, (k) for wrongful distress (/), for assault (m), for negligence (o), for nuisance (p), for false imprisonment (q), for infringement of a patent (r), for keeping a dangerous animal (s), for breach of trust (t), and even for fraud (u), and for torts involving malice, such as malicious prosecution (a) and libel (b). A corporation may be sued upon a fraudulent representation as to the credit of a third person if made under its seal (c), but not if made in a letter written and signed by its agent (d). A corporation can be made liable in a civil action for maintenance (e)."
(h) It was urged by the learned counsel for the defendants Nos,. 1 and 2 that the act of defendant No, 3 cannot be termed as an act of an employee of a Corporation acting within the scope of his authority and, therefore, defendant No, 1 cannot be made liable vicariously. In the instant case, the negligence originates/emanates from the workshop of defendant No, 1 when a vehicle was allowed to ply on the road with broken lock of the door when there was possibility of its being parked unattended and further act of negligence was committed by defendant No, 2, when he parked the truck unlocked/unattended for 1-1/2 hours. The above acts of negligence arose out in the course of the employment of defendant No, l's employees and were also within the scope and authority of the said employees and were directly connected with the accident resulting into the death of the deceased. In my view, one who leaves a vehicle on a road unattended, shall be liable to pay damage! For the death or injury sufferred on account of an accident involving such vehicle if an act of negligence proceeding to the accident is proved on his part, and an employer including a statutory corporation shall be liable for the act of negligence on the part of his/its employee committed in the course of his employment. My finding on the above issues 4, 5, 6 and 8 is that the truck was driven at the time of the accident by defendant No, 3 unauthorisedly but the accident most probably would not have occurred if defendant No, l's aforesaid employees would not have committed aforesaid acts of negligence. I therefore, hold that the defendants are jointly and severally liable.
7. Issue No, 7.-On this issue P. Ws. 3 and 4 have been examined. In addition to that Exh. 5, an identity card issued by Buxly Paints Ltd. To the deceased has been produced, in which date of birth given is 1937, which, corroborates the statement of the above two witnesses. There is no other evidence on record in rebuttal of the above documentary and oral evidence I, therefore, hold that at the time of the accident the age of the deceased was 38 years. I further hold that he was earning Rs, 491 per month as evidenced from Exhs. 13/1 and 13/2 and has been deposed by P. W. 4 Itrat Hussain, the Manager of Buxly Paints Ltd.
8. Issues Nos, 1 to 3.-The learned counsel for the parties have not addressed specifically their arguments on the above three issues, but during the arguments it was urged by the learned counsel for the defendants Nos, 1 and 2 that the suit is not maintainable and that it does not disclose any cause of action against the said defendants and that the suit is bad for misjoinder of defendant No,
1. In view of the above discussion under issues 4, 5, &and 8 my finding on the above issues are in the negative.
9. Issue No, 9.-On the basis of the deceased's age as 38 years keeping in view the deceased's salary at the time of his death viz., Rs, 491 per month, and assuming a normal span of life of 60 years and after allowing 1/3rd personal expenses, the plaintiff along with her 8 children mentioned in para. 7 of the plaint are entitled to the following amount : ' Rs, 491-1/3rd, viz. 164=323 323 x 12 x 22= Rs, 86,328.
' I, therefore, decree the suit for a sum of Rs, 86,328 against the defendants jointly and severally with 7 % interest thereon from the -date of the suit till payment and proportionate costs.
' Before parting with the discussion I may observe that defendant No, 3 did not participate from the stage of recording of the evidence and, therefore, he was ex parte.