( 1 ) THIS is a defendants appeal arising out of a suit for recovery of damages. The plaintiff owned a motor lorry which was being used for unloading ballast in the Kharia aerodrome. On 21-7-1942, a lorry driven by Maqbul Hasan defendant 2 (respondent 3 in the present appeal) while engaged in the business of transporting ballast from a certain village to the Kheria aerodrome struck the plaintiffs lorry and damaged it. The plaintiff had to incur expenses in repairing the lorry and the lorry remained out of use for a period of about one month. The plaintiffs case was that the lorry was owned by the defendant-appellant firm which was arrayed as defendant 1 in the suit and that defendant 2, Maqbul Hasan was its servant working under its directions at the time of the incident. He alleged further that defendant 2 was driving the motor lorry rashly and negligently and it was on account of such rash and negligent driving of defendant 2 that the plaintiffs lorry was damaged. He, therefore, sued both these defendants to recover damages to the extent of Rs. 1500.

( 2 ) DEFENDANT 1 pleaded that it was merely a hirer of the lorry and had no control on the action of defendant 2 and that certain other persons who were subsequently impleaded as defendants 3 and 4 were the owners and defendant 2 was their servant and under their control. He, therefore, denied all liability with regard to the damage caused. He also demurred to the amount of the damages claimed and specially to the amount claimed on account of loss sustained by the lorry remaining idle and the amount claimed on account of depreciation. It was also contended that there was no negligence on the part of defendant 2.

( 3 ) THE Courts below found that the accident was due to the negligence of defendant 2, the driver. They further found that the plaintiff suffered a loss of Rs. 1300 composed of the following items: rs. 465 spent on replacing damaged parts. Rs. 30 spent on wages of a mechanic. Rs. 250 on account of loss on account of the lorry remaining idle for a month. Rs. 555 on account of depreciation caused to the lorry they further held that defendants 1 and 2 were both liable. The suit was, therefore, decreed for recovery of Rs. 1300 against defendants 1 and 2 and dismissed against defendants 3 and 4.

( 4 ) IN this Second Appeal by defendant 1 the points urged before me are that the defendant. appellant was not liable to pay any damages because defendant 2 was not under its control and that the lower Court has failed to determine this crucial point in the case and that at any rate, the defendant-appellant was not liable for the damages awarded on account of the loss of business and depreciation.

( 5 ) IT was found by the Courts below that the lorry was registered in the names of defendants 3 and 4 and that ostensibly they were its owners. It was, however, not determined by the Courts below, whether defendant 2 was the servant of defendants 3 and 4 or the defendant appellant. It was the admitted case of the parties that the defendant-appellant was, at the time of accident using the lorry for the business of defendant 1. The case of the defendant-appellant was that he was the hirer merely.

( 6 ) BOTH the Courts below were inclined to the view that the defendant-appellant was "most probably" the owner of the lorry, defendants 3 and 4 being mere dummies or figure-heads. Both the Courts below have, however, concurrently found that at the time of the accident, defendant 2 was in the service of defendant 1 and acting under his control. Learned counsel has admitted that this was clearly the finding of the trial Courts but has urged that this has not been so found by the lower appellate Court. The lower appellate Courts finding may here be quoted:

"as the Munsif has remarked, no evidence was produced to show that Maqbul Hasan was being paid his wages by defendants 3 and 4 Actually it seems to me that though the lorry was registered in the names of Girish Chandra and Kunwar B