The employer is liable to pay compensation for the negligence of his servant if the servant was acting in the course of his employment.

( 1 ) THE claim of the appellants under section 110-A of the Motor Vehicles Act for compensation for the death of Ram Lakhan (husband of appellant Mo. 1 and father of appellants 2 to 4) was dismissed by the Motor Accidents Claims Tribunal against all the three respondents, viz. against respondent No 1, Dayal Singh on the ground that he was not driving the truck when the fatal accident took place causing the death of Ram Lakhan, against respondent No. 2, Delhi Municipal Corporation, Delhi, because the act of the driver was not in the course of the employment and, therefore, the employer was not liable for his act and against respondent No. 3 the Indian Insurance Companies Association Pool, as the question of the liability of the Insurance Company was not pressed. Hence this appeal by the claimants.

( 2 ) THE admitted facts are that the Motor Vehicle belonging to the Municipal Corporation of Delhi was within the premises of the said Corporation in which Ram Lakhan also lived with his family. Ram Lakhan was at the water tap when the vehicle dashed against him from behind and killed him. The claimants are the widow and the children of Ram Lakhan. In the application under section 110-A of the Motor Vehicles Act the claimants alleged that the vehicle was driven by respondent No. 1, Dayal Singh, and that it was owned by respondent No. 2, and also that it struck Ram Lakhan from behind and crushed him to death In the written statement filed by the Delhi Municipal Corporation these allegations made in paragraph 1 of the claim petition were admitted. The claimants further alleged that the death of Ram Lakhan was due to the negligence of Dayal Singh. This was denied by the Delhi Municipal Corporation But the next allegation of the claimants that the Delhi Electricity Supply Undertaking was the owner of the vehicle and that the undertaking was a part of the Delhi Municipal Corporation and that the said Corporation was liable to compensate the claimants for the death of Ram Lakhan under the circumstances explained above was not denied by the Corporation. But the Corporation stated that it was prepared to pay a sum of Rs. 800. 00 to the claimants under the Workmens Compensation Act. The allegation of the claimants that the accident was caused by the negligence of Dayal Singh and that the Corporation was liable to pay compensation to the claimants under sections 1 10 to 110-F of the Motor Vehicles Act) was not denied by the Corporation either specifically or by necessary implication and shall therefore, be taken to be admitted by them in view of the principle underlying Order 8 Rule 5, Civil Procedure Code The mere statement that the Corporation was prepared to pay compensation under the Workmen s Compensation Act did not mean that the Corporation was denying that the driver was negligent and that the Corporation was the owner of the vehicle. In view of these admissions made by the respondent No 2, Delhi Municipal Corporation, the only issue between the claimants and the Corporation would be under what law is the compensation payable to the claimants to be assessed and what should be this amount. The learned counsel for the respondent-Corporation has, however, pointed out that nowhere in the statement of claim have the claimants stated that the vehicle was being driven by the servant of the Corporation in the course of his employment. It is true that there is no such specific pleading by claimants. The questions which arise for decision in this case, therefore, are as follows :-

(1) Whether the absence of a specific pleading that the accident caused by the sen ant of the Corporation was in Ihe course of his employment is fatal to the claim ? (2) Under what law was the compensation payable by the Corporation to the claimants ? and (3) If so payable, to what amount of compensation are the claimants entitled ? (1) In considering the absence of the specific pleading regarding the course of the employment, the following points are t