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 2-3 trucks crossed the bridge in his very presence. Apart from the question that the drivers of those trucks were not examined, Bhaiyalal (4 D.W. 2) contradicted him on this point. Both Tulsiram (4 D.W. 1) and Bhaiyalal (4 D.W. 2) stated that, as they were crossing the bridge, the flood level rose suddenly and the truck was washed away.
We were also referred to the evidence of Parsadi (P.W. 2), one of the coolies on the truck, to the effect that the river suddenly rose in spate, It is not clear from his evidence whether he referred to the time when the truck was crossing the bridge. In the first place, it is extremely unlikely that the witnesses could have noticed the sudden rise in the water level at midnight. Secondly, the depth of the water over the bridge had not been gauged. Finally, while Tulsiram (4 D.W. 1) said that when the truck entered the bridge, water over the bridge was 6 to 9 inches deep. Bhaiyalal (4 D.W. 2) disclosed that it was already 12 to 18 inches deep. In view of the evidence, agreeing with the lower Court we do not find it proved that the water level rose suddenly when the truck was crossing the bridge. In our opinion, the driver, who did not care to ascertain the depth of water over the flooded bridge and who paid no heed to the warnings of Fakirchand and the coolies on the truck, as disclosed by Parsadi fP.W. 2) and Baburam (P.W. 3), clearly acted negligently in trying to cross it.
7. The next question for consideration is whether the defendants 1 to 3, who are owners of the truck, are liable for the negligence of their driver. It is well-settled that, if a driver acting in the course oF employment, drives his master's car rashly or negligently so as to cause injury to another, the master is vicariously liable in damages for the driver's tort. The basis of liability is that the act of driving was authorised though the mode of performing it was improper. The act does not cease to be authorised only because it is improperly performed. The principle is that where the servant is doing work which he is appointed to do but does it in a way which his master has not authorised and could not have authorised had he known of it, the master is none the less responsible. On this principle, the defendants 1 to 3 cannot disclaim liability only on the ground that the driver performed the authorised act improperly by trying to cross a flooded bridge.
8. It is, however, urged that the defendants 1 to 3 are not liable because there was no contract to carry Fakirchand on the truck for hire or otherwise and he was a mere volunteer. The plaintiffs did not plead that there was a contract in. pursuance of which Fakirchand was to travel on the truck from Sagar to Atta and back. Nay, they did not amend the plaint to put forward that plea even after the defendants 1 to 3 expressly pleaded that, in travelling on the truck, Fakirchand was a volunteer. That being so the lower Court was not right in relying upon the evidence of Parsadi (P.W. 2) and Baburam (P.W. 3) to hold emphatically that Fakirchand travelled on the truck in pursuance of a specific contract and in accordance with the ordinary course of business.
9. Although the defendants 1 to 3 had not expressly prohibited Fakirchand from travelling on the truck, it is in the evidence of Bhaiyalal (1 D.W. 1), defendant No. 1, Sunderlal (1 D.W 2), Girdhari (1 D.W, 3), Tulsiram (4 D.W. 1), driver and Bhaiyalal (4 D.W. 2), conductor, that only coolies employed by Fakirchand were permitted to travel on the truck. The lower Court regarded these witnesses as interested and did not rely upon them. We think that the lower Court has not properly considered two matters. There is no plea that Fakirchand was permitted to travel on the truck. Also, Rule 88 of the Motor Vehicles Rules, 1940, provides that no person shall be carried in a goods vehicle other than a bona fide employee of the owner or the hirer of the vehicle. Having in view these two considerations, we accept the evidence led by the defendants to prove that only coolies of Fakirchand were permitted to travel on the truck.
10. In the instant case, Fakirchand travelled on the truck in disregard of the prohibition contained in Rule 88 of the Motor Vehicles Rules, 1940. Indeed, as the evidence of Tulsiram (4 D.W. 1) and Bhaiyalal (4 D.W. 2) shows, he boarded the truck in spite of their pointing out to him that only his coolies were permitted to travel on it. In view of these facts, the question is whether the owners of the truck, namely the defendants 1 to 3, are liable in damages for the death of Fakirchand caused in consequence of actionable negligence of their driver.
In our view, the principle underlying the case Twine v. Bean's Express, Ltd., 1946-1 All ER 202 applies. In the English case, the employers had expressly instructed their driver not to allow unauthorised persons to travel on their vehicles and affixed a notice to that effect in the driver's cab. Even so the driver gave a lift to a person who was killed in consequence of the driver's negligence. The Court of appeal held that the driver was acting outside the scope of his employment and accordingly his employers were not liable.
The principle is that the act of giving a lift to an unauthorised person is not merely a wrongful mode of performing an act of the class which he was employed to perform but the performance of an act of a class which he was not authorised to perform at all. In the instant case, unlike the English case, the prohibition existed in consequence of a statutory rule. Furthermore, Fakirchand was told before he boarded the truck that only his coolies were permitted to travel on it. In the circumstances, we consider that the defendants 1 to 3 are not liable in damages for the death of Fakirchand.
11. The defendants 1 to 3 have also questioned the amount of damages awarded in this case. According to them, it is based on a wrong assumption, of the ages of the two children of Fakirchand and is otherwise excessive. We do not consider that the basis of computation of compensation adopted by the lower Court in paragraph 34 of its judgment is incorrect in the circumstances of the case. Nor do we think that the amount awarded as compensation is excessive having regard to measure usually adopted in such cases. We may in this connexion usefully refer to Dinbai R. Wadia v. Farukh Mobedjna, AIR 1958 Bom 218. In any event, since the defendant 4, who alone will now be liable under the decree has not appealed, we do not consider it necessary to subject the quantum of damages awarded to closer scrutiny,
12. The result is that the appeal succeeds and is allowed. The decree of the lower Court is modified. Instead of that decree, there will now be a decree for Rs. 5,500/- against only the defendant 4. The decretal amount shall be paid to the plaintiffs as ordered by the lower Court. Further, out of the costs of the lower Court, Rs. 460/- shall be recovered from the defendant 4 and Rs. 293/5/- from the plaintiff's. The claim against the defendants 1 to 8 is dismissed. The plaintiffs shall pay to the defendants 1 to 3 their costs in both the Courts. Counsel's fee here according to schedule.