The owner of a motor truck is not liable for the negligence of his driver if the person injured was travelling on the truck in disregard of a statutory prohibition and had been told before boarding the truck that only certain persons were permitted to travel on it.

( 1 ) THE defendants 1 to 3 have appealed against the lower Court's decree for Rs. 5,500/- passed against them and defendant 4 for rashness and negligence of the defendant 4 in driving a motor truck, which resulted in the death of one Fakirchand.

( 2 ) THE undisputed facts are these. On 4-8-1951, Fakirchand had engaged the motor truck No. 352 C. P. S. belonging to the defendants 1 to 3 for carrying stones from the quarry at village Atta to Sagar. It was understood that the truck would be driven by the defendant 4, a driver in the employ of the first 3 defendants. On the same day, at about midnight, when Fakirchand and his 3 coolies were also travelling on the truck laden with stones, it crossed a river called Mehar. Since the river was in spate, the force of water swept away the truck then driven by the defendant 4. As a consequence. Fakirchand and one cooly, by name Gyani, lost their lives.

( 3 ) THE plaintiff No. 1 (21 years) is the widow of Fakirchand. The other two plaintiffs are his infant son (4 years) and daughter (2 years ). They initiated this action for damages alleging that the defendant 4 crossed the bridge over river Mehar with great speed and despite all warning given by those, who were on the truck, not to cross the flooded river. They averred that since the defendant 4 was acting in the course of his employment and for the business of the defendants 1 to 3, they too were liable to pay damages. According to the plaintiffs Fakirchand was a young man aged 25 and was expected to the live long. He earned about Rs. 300/-per month. His premature death deprived his young widow and infant children of the only means of their support and sustenance. They, therefore, claimed Rs. 10,000/- as damages.

( 4 ) THE defendants 1 to 3 and the defendant 4 contested the claim. They denied that when crossing the bridge over river Mehar, the truck was driven by the defendant 4 either rashly or negligently. On the other hand, it was taken over the bridge with the greatest caution, almost at crawling speed Though there was water over the bridge, several motor vehicles had crossed it immediately before the defendant 4 endeavoured so to do. It was the expected, unforseen and sudden rush of water, which swept away the truck. The accident was, therefore, caused by vis major, for which they could not be held responsible. They also pleaded that Fakirchand earned only Rs. 2/- per day and was vitually a labourer. The first 3 defendants additionally pleaded that there was no contract to cany Fakirchand on the truck for hire or otherwise, that he travelled on the truck, which was a carrier, as a volunteer on his own responsibility and that, therefore, they were not vicariously liable in damages for his death.

( 5 ) THE lower Court held that the defendant 4, in crossing the bridge, which was flooded, acted rashly and negligently, that there was a contract to carry Fakirchand and his coolies on the truck and that the defendants were, therefore, liable in damages which were assessed at Rs. 5,300/ -.

( 6 ) THE first question for consideration is whether the driver Tulsiram acted negligently in crossing the submerged river bridge. Tulsiram 4 D. W 1 (driver) and Bhaiyalal 4 D. W. 2 (conductor) did not say that they made any endeavour to ascertain the depth of water over the bridge. They admitted that one Vishwanath, driver of a truck belonging to the Sagar University, had stopped, the truck and did not drive it across the flooded bridge. They, however, explained that Vishwanath was attending to the lights of his truck and he told them that they might cross the bridge since 2-3 trucks had crossed it Since Vishwanath and his two companions were not examined, we are unable to accept this part of then evidence. On the other hand, we think that an adverse inference should be drawn for the failure of the defendants to examine disinterested persons who were present on the spot at the material time. Tulsiram (4 D. W. 1) would have it believed that 2