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Bombay High Court
PURANIK
Gaurabai - Appellant
Versus
Jagdish Prasad - Respondent
Decided On : 09/06/1983
NEGLIGENCE - VICARIOUS LIABILITY - MOTOR VEHICLE ACCIDENT - OWNERSHIP OF VEHICLE - EMPLOYMENT OF DRIVER - LIABILITY OF OWNER FOR DRIVER'S NEGLIGENCE - QUANTUM OF DAMAGES.
Fact of the Case:
The plaintiffs filed a suit for damages against the owner and driver of a car involved in an accident that resulted in the death of their relative, Dhondo Datar. The plaintiffs alleged that the driver, Balram Swami, was negligent and that the owner, Jagdish Prasad, was vicariously liable for the driver's negligence. The trial court dismissed the suit, finding that the plaintiffs failed to prove that Balram Swami was the driver of the car and that Jagdish Prasad was not vicariously liable.
Finding of the Court:
The appellate court found that the plaintiffs had established that the car involved in the accident was owned by Jagdish Prasad and that Balram Swami was the driver of the car at the time of the accident. The court also found that Jagdish Prasad was vicariously liable for Balram Swami's negligence. The court awarded the plaintiffs damages of Rs. 10,000, including Rs. 9,000 for loss of earnings and Rs. 1,000 for marriage expenses.
Issues: 1. Whether the plaintiffs had established that the car involved in the accident was owned by Jagdish Prasad. 2. Whether the plaintiffs had established that Balram Swami was the driver of the car at the time of the accident. 3. Whether Jagdish Prasad was vicariously liable for Balram Swami's negligence. 4. The quantum of damages to be awarded to the plaintiffs.
Ratio Decidendi: 1. The court found that the plaintiffs had established that the car involved in the accident was owned by Jagdish Prasad based on the following evidence: a. The car owner admitted ownership of the car in his reply notice to the plaintiffs' claim notice. b. The car owner did not deny ownership of the car in his written statement. c. The car owner's pleadings admitted that Balram Swami, as described in the plaint, was the person under the employment of the car owner and was driving at the material time. 2. The court found that the plaintiffs had established that Balram Swami was the driver of the car at the time of the accident based on the following evidence: a. Eyewitnesses testified that they saw Balram Swami driving the car at the time of the accident. b. The car owner did not deny that Balram Swami was the driver of the car at the time of the accident. c. The car owner's pleadings admitted that Balram Swami, as described in the plaint, was the person under the employment of the car owner and was driving at the material time. 3. The court found that Jagdish Prasad was vicariously liable for Balram Swami's negligence based on the following principles: a. A master is bound by the acts of the servant, even if the act is unauthorized or prohibited, provided the act was within the scope of the service or employment. b. Joint wrongdoers are jointly and severally responsible for the whole damage. c. A master is jointly and severally liable for any tort committed by his servant while acting in the course of his employment.
Final Decision: The appellate court allowed the appeal, set aside the judgment and decree of the trial court, and awarded the plaintiffs damages of Rs. 10,000, including Rs. 9,000 for loss of earnings and Rs. 1,000 for marriage expenses.
2. The appellants filed a suit in forma pauperis to claim damages from the defendants. The application to sue in forma pauperis was allowed and the proceedings were registered as Special Civil Suit No. 51/72. It was the case of the appellants/plaintiffs that appellant No. 1 Gaurabai is the widow of Dhondo Datar, while appellant No. 2 -Sushila is the daughter of deceased Dhondo Datar. Briefly stated the claim of the plaintiffs
was that on 1-3-1970 between 9 P. M. and 9.30 P. M. the deceased Dhondo Datar was standing near a Pan Thela in front of Popular Book Depot opposite Patwardhan High School, Sitabuldi, Nagpur. At that time, one Ambassador Car bearing No. BYJ-8037 belonging to defendant No. 2 - present respondent No. 1, came from the side of Variety Square in full speed. It was going towards Nagpur Mahavidyalaya. It was being driven by original defendant No. 1- Balram Swami. The driver of the car was driving the the vehicle in a rash and negligent manner, and while overtaking a cycle rickshaw, the driver lost the control and suddenly dashed against. Dhondo Datar on the right side of the road. The said Dhondo Datar fell on the spot because of the impact of the car. He was removed to the Hospital, but died within a couple of hours thereafter.
3. The people present near the Pan Shop and the neighbouring house of Shri Gadgil attempted to stop the car, but the driver immediately reversed the car towards Variety Talkies and fled away. The eye-witnesses present immediately rushed to the nearby Sitabuldi Police Station and reported the incident. The information was given by one Jayant Kulkarni (P. W. 2) wherein he gave the description of the car, the make of the car, its colour and also stated that the number of the car was "BYJ-8037". He was not sure of the third letter on the car number plate.
4. It is further the case of the plaintiffs that on enquiries by the police authorities, the car BYJ-8037 was traced out at Bombay Garage and was found to be owned by respondent No. 1-Jagdish Prasad. The said car was seized by the police and a seizure and its Panchanama were executed vide Exhibits 74 and 75 in the presence of Panchas. It shows that there were many blood marks on the front right side of the car as well as the dents noticed on the lower plate of the bonnet and right side headlight glass. Blood clots were scattered all over the front portion of the car.
5. On the allegation that the original defendant No. 1-Balram Swami was the driver in the employment of defendant No. 2 and that the said car while being rashly and negligently driven by respondent No. 1 dashed against Dhondo Datar, the plaintiffs claim damages against the Driver-defendant No. 1 and the owner-defendant No. 2. The original defendant No. 3-presently respondent No. 2 is the Insurance Company with whom the said car was insured at the material time.
6. It appears that the plaintiff did not initially have the name and address of the driver of the vehicle. The plaintiffs issued a notice (Ex.P-77) to the car owner Jagdish Prasad on 9-9-1970. In the said notice, a specific averment was made on behalf of the plaintiffs that Dhondo Datar met with a fatal accident due to rash and negligent driving of the car belonging to Jagdish Prasad bearing No. BYJ-8037 and driven by his driver. The date and time and location of the place of accident was also specifically mentioned. In the reply sent on behalf of car owner Jagdish Prasad vide Ex.P-78, it was admitted that Jagdish Prasad is the owner of car No. BYJ-8037. However, the car owner denied any knowledge of any fatal accident on 1-3-1970 at Sitabuldi as alleged. He also denies the fact that the fatal accident was caused due to the rash and negligent driving on the part of his driver.
7.
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