Owner liable for the damages.

This appeal arises out of an action instituted by the respondents for compensation under the provisions of the Fatal Accidents Act, XIII of 1855. The appellant is a company engaged in the business of transporting passengers by bus between Dharapuram and Palani, among other places. On 20th September, 1947, one of their buses MDC. 2414, while running from Dharapuram to Palani with passengers, met with an accident at a place called Puliampatti about 3 miles from Palani, as a result of which some of the passengers sustained injuries and one of them Rajaratnam died on 23rd September, 1947. The first plaintiff is his father, the second plaintiff is his widow and plaintiffs 3 to 7 are his sons. They alleged in the plaint that the driver who was in charge of the bus was incompetent and inexperienced; that he was guilty of rash and negligent conduct in the driving of the bus; and that the accident was the result of his incompetence and negligence. Compensation was claimed under section 1 of the Act for the loss of pecuniary benefit sustained by the plaintiffs personally, and under section 2 for the loss sustained by the estate, by reason of the death of Rajaratnam. The defendants contested the claim. They denied the allegations that the driver was incompetent and inexperienced or that the driving was rash and negligent. They further pleaded that the accident was the result of the rear centre bolt suddenly giving way and that no negligence could be attributed to them. They also pleaded that the damages claimed were excessive. The Subordinate Judge of Dindigul held that there was no proof that the bus was driven at a reckless speed at the scene of accident, but that the fact of its occurring on the off-side of the road was itself evidence of negligence and that it had not been rebutted by the defendants. He also held that Joseph, the driver, was not proved to be competent. He, therefore, held that the defendants were liable for the negligence of their servant. On the question of damages, he awarded a sum of Rs.3,600 to the first plaintiff and a sum of Rs.25,200 to plaintiffs 2 to 7 under section 1 of the Fatal Accidents Act and a sum of Rs.6,000 to plaintiffs 2 to 7 under section 2 of the Act. Against this decree, the defendants preferred the present appeal. The points that arise for decision in this appeal are (1) was the accident due to the negligence of driver Joseph? (2) If so, to what damages the plaintiffs are entitled?

The facts are as follows: On 20th September, 1947, bus No.MDC.2414 started on its journey from Dharapuram to Palani and Exhibit A-19 which is the copy of the entry in the Police Register shows that the bus left the Police station at 3 p.m. with 16 passengers and with one Sheriffuddin (D.W.3) as its driver. The bus. then came to the stand and picked up the other passengers and actually left Dharapuram at 3-5p-m. with 26 passengers. Just when it was about to start the cashier of the company put one Joseph in the place of Sheriffuddin for driving the bus and asked the latter to help him as he was new to the road. Then Joseph took up the driving with Sheriffuddin seated by his side. At Thumbalapatti just about 16 miles from Dharapuram, Rajaratnam, his brother P.W.6 and one Thirumala Goundan got into the bus. Three miles further down towards Palani there is a place called Puliampatti and that is where the accident took place. There, the road passes over a culvert and then there is a sharp bend with a downward gradient. East of the road is a drain and that is marked off by 5 stones 2 feet high. The bus after crossing the culvert crashed against the 5th stone with so much force that the latter was uprooted and broken. It next attacked a tamarind tree which is stated to be at a distance of 20 or 25 feet from the stone and its bark was peeled off and it travelled some more distance before it finally came to rest. Some of the passengers were Locked and thrown within the bus itself and sustained injuries.