1. First deft. is the applt. He had put his lorry No. C.S 1520 in the charge of defts. 2 & 3 for the purpose of transporting salt from Nagercoil to Trivendrum. Defendant 2 was the driver & deft. 3 the conductor of the lorry. While the lorry was on its way from Nagercoil to Trivendrum with a load of 70 bags of salt, the offside front tyre (front tyre on the right side) burst & the lorry got out of control, This happened on 29-5-1116 at a place between the 3rd & the 4th furlong stones on the 28th mile on the M.S Road. The lorry took its own course & dashed against the bus T.V.R 6998 of the Travancore State Transport Dept., which was coming in the opposite direction on its way to Nagercoil. As a result of the collision the driver & the conductor of the bus sustained serious injuries & considerable damage was caused to the bus. The bus belonged to the Travancore Govt. & the driver & the conductor were employees under that Govt. For the damages sustained by the Govt. as a result of the collision between the bus & the lorry, brought about by the wrongful & negligent acts of defts. 2 & 3 an action in torts was brought by the Govt. against defts. 1 to 3. The damages claimed were under four different items, viz., Rs. 852 on account of the cost of repairing the damages sustained by the bus, Rs. 15 by way of losses for not being able to put the bus in service, Rs. 406-21 chs. 9 cash paid to the driver of the bus towards part payment of the compensation due to him under the Workmen's Compensation Act (XIII [13] of 1114 of Travancore) & Rs. 77-3 Xhs. 11 cash paid as allowanoe to the conductor of the bus for the period he was incapacitated to work. All the defts. resisted pltf.'s claim for damages & denied the alleged negligent acts of overloading the lorry & of using old & worn-out tyres. The first deft. further maintained that he had entrusted new tyres to defts. 2 & 3 & had instructed them not to overload the lorry & that he is not liable for any acts done by them in violation of this instruction. It was also contended that it was the negligence of the driver of the bus that was mainly responsible for the collision. On the basis of such an allegation deft. 1 had instituted a separate suit O.S 11 of 1118 against the present pltf. for recovery of the cost of repairing the damages caused to his lorry. These two suits were tried together. O.S 11 of 1118 was dismissed by the lower Ct. & deft. 1 (who was the pltf. in that case) has not preferred any appeal against that decision. In the present suit the lower Ct. gave a decree for the pltf. for recovery of the damages claimed under items 1, 3 & 4. This appeal is against that decree.
2. On most of the relevant facts there is no dispute between the parties. Admittedly the lorry O.S 1520 belonged to deft. 1 & his employees defts, 2 & 3 were in charge of the lorry when it collided with the bus T.V.R 5998 of the Travancore State Transport Dept. It is also admitted & conclusively proved in this case that when the lorry had reached the 4th furlong of the 28th mile on the M.S Road from Nagercoil to Trivandrum, the right side front tyre burst, that the lorry got out of control & went forward & dashed against the bus T.V.R 5998 that both the vehicles sustained considerable damages. The fact that the driver & the conductor of the bus had sustained injury as a result of the collision of the two vehicles is also not disputed.
3. The main dispute centres round the question as to whether the collision between the lorry & the bus was the natural & direct result of the wrongful & negligent acts of defts. 2 & 3. The permit issued for the use of this lorry had fixed 2740 lbs. as the maximum load that could be carried in the lorry. This fast was printed on the lorry itself as required by the rules-Exhibit A mahazar was prepared by P.W 6 soon after the collision of the lorry & the bus. It is stated in this mahazar that the loading capacity of the lorry was found noted on the lorry itself as 2740 lbs. To carry a load in excess of this limit was an offence under the Motor Vehicles Act. When Ex. A mahazar was prepared there were 70 bags of salt in the lorry. The weight of each bag of salt was found to be 164 lbs. Thus the actual load in the lorry was 11480 lbs. This was more than four times the maximum load permitted to be carried in the lorry. Defendant 2 was prosecuted for thus overloading the lorry—in C.C.N 313 of 1116 of the Stationary Mag.'s Ct. at Kuzbithurai. Exhibit C is the judgment & Ex. D is the charge-sheet in that case. Defendant 2 pleaded guilty to the charge & accordingly he was convicted & sentenced to pay a fine of Rs. 30. Thus the wrongful & negligent act of overloading the lorry has been conclusively established in this case. D.W 3 who is a motor engineer, has been examined as an expert witness on the defts.' side & he swears that in the case of a one & a half ton lorry like the one under consideration the maximum loading capacity as fixed by the makers would be about 6 to 7 thousand pounds. This cannot be said to be a matter strictly coming within the expert knowledge of D.W 3. He himself is not definite about the maximum loading capacity fixed by the maker & there is no reliable date in support of the limit mentioned by him. Apart from this aspect of the matter, it has to be stated that the defts. are not entitled to contend that they were at liberty to ignore the maximum loading capacity fixed in the permit issued under the Motor Vehicles Act in respect of this particular lorry & to carry a load up to the limit fixed by the makers of the lorry. In the present instance even such a maximum limit spoken to by D.W 3 was exceeded by about 4500 lbs. Thus in any view of the matter the lorry was loaded far beyond its capacity during the trip when it collided with the bus T.V.R 5998. Such overloading was an act wrongful & culpably negligent.
4. Coming to the condition also of the tyres used for the lorry at the time of the collision, there is clear & conclusive evidence that the tyres were old & worn out. (After discussing the evidence the judgment proceeded:)
5. The defts'. plea that the bursting of the tyre & the consequent collision of the lorry with the bus were mere accidents has to be examined in the light of the two outstanding facts already established. As men of ordinary prudence & diligence, defts. 2 & 3 could & should have realised that it was dangerous to put the lorry to service with any of its tyres in a worn out & unfit condition. The possibility of danger resulting from the bursting of the tyre was all the greater when the lorry was overloaded far in excess of its capacity. After having committed these two wrongful & negligent acts, it is not open to these defts. to contend that the bursting of the tyre & the collision of the lorry with the bus are mere accidents particularly when it is seen that no extraneous or unexpected circumstance had intervened as a contributory cause of the bursting of the tyre. The fact that the bursting did not take place until the lorry had reached the 28th mile from Nagercoil cannot & will not show that the bursting of the tyre was not the direct result of the negligent acts of the defts. The possibility of the danger was inherent in those acts & it could have happened at any moment after the starting of the lorry from Nagercoil. It is seen from Ex. B plan of the place at which the collision took place & also from Ex. A mahazar that the lorry was coming down a slope & negotiating a curve when the bursting of the right side front tyre took place. It is admitted by the defts. that the lorry was having its regular trips along this road. Hence it cannot be said that defts. 2 & 3 were suddenly & unexpectedly placed in the situation in which they had to take the lorry down the particular slope at which the collision took place. Even at the commencement of the journey from Nagercoil they were conscious that the overloaded lorry had to be taken along this part of the road also & such consciousness on their part was an additional reason why they should have refrained from committing the negligent acts of using a worn out tyre & overloading the lorry. Since it is seen that nothing unforeseen & unexpected happened during the interval between the starting of the lorry & the bursting of the tyre, it has to be taken that the burstirig of the tyre was the direct & natural result of the wrongful & negligent acts of deft. 2 & 3 & that it was not a mere accident.
6. After the bursting of the tyre the lorry got out of control & it dashed against the bus T.V.R 5998 which was coming up along the same route. It is contended on behalf of the defts. that the driver of the bus could have prevented the collision either by stopping the bus or by turning it to the right side of the road, & that his negligence in not adopting either of these courses has contributed to the collision. It was also pleaded by the defts. that as soon as the tyre of the lorry burst, defts. 2 & 3 drew the attention of the driver of the bus to the imminent danger by calling out & showing signs. But defts. have failed to prove & substantiate this version. The lorry driver examined as D.W 4 has not deposed that he called out or showed any sign to the driver of the bus to indicate that danger was ahead. D.W 5 is the conductor of the lorry & he has stated that he made an attempt to invite the attention of the bus driver to the possible danger. The bus conductor who was examined as D.W 6 has deposed that there were no signs or shouts from the lorry as stated by D.W 5 & that the collision between the lorry & the bus toot place almost immediately after the bursting of the tyre of the lorry. D.W 6 has also admitted that the collision took place soon after the bursting of the tyre. One of the passengers in the bus has been examined as D.W 1 & he has stated that the sighting of the lorry, the hearing of the sound of the bursting of the tyre, the hitting of the lorry on the bus & his being thrown away from the bus all took place in very quick succession. Thus it is clear that there was hardly any time for the driver of the ‘bus to contribute any negligence as a cause for the collision. The fault attributed to the bus driver is that he attempted to dash forward & thus to avert the possibility of the lorry hitting against the bus. It has to be remembered that the bus driver was acting on the spur of the moment on seeing the lorry suddenly taking a wrong turn & was about to dash against the bus. In such a situation the bus driver could not reasonably be expected to hope to avert the danger by directing the course of the bus along the wrong side of the road as suggested by the defts. The only possibility of avoiding the threatened danger was by dashing forward before the lorry could actually hit against the bus. In making an attempt in that direction the driver of the bus has acted with as much judgment & self-control as could be reasonably expected from a person who was suddenly put in a position of imminent danger by the wrongful & negligent acts of defts. 2 & 3. It cannot be said that the driver of the bus was acting recklessly & negligently. He was acting in the agony of the moment & what he did or omitted to do in such a situation cannot be treated as negligence on his part. This is the view taken by the House of Lords in dealing with a similar situation in Jones v. G.W Rly. Co., (1931) 144 L.T 194 at p. 201 : (36 com. cas. 136). It was again observed by the House of Lords in U.S Shipping Board v. Laird Line Ltd., 1824 A.C 286 at p. 291 : (93 L.J P.C 123), that “it is not in the mouth of those who have created the danger of the situation to be minutely critical of what is done by those whom they have by their fault involved in danger.” Applying these principles to the facts of the present case, it is clear that the defts'. charge of contributory negligence against the driver of the bus is unsustainable. In fact it cannot be said that there was any negligence on his part which to any extent contributed to the collision between the lorry & the bus. The wrongful & negligent acts of defts. 2 & 3 were alone responsible for the collision.
7. The next aspect to be considered is how far deft. 1 is liable for the acts of defts. 2 and 3 who were admittedly employees working under him. It is settled law that a master is liable for any fault committed by his servants while acting in the course of his employment. For the application of this rule of vicarious liability, two essential conditions must be satisfied, viz. (1) the relationship of master & servant must have existed at the time of the wrongful act complained of, & (2) the act must have been committed in the course of the employment. If the wrongful act was one authorised by the master it would undoubtedly be deemed to be an act done in the course of the employment. Even a wrongful & unauthorised mode of doing an authorised act, which in it self is lawful, will be deemed to have been done in the course of the employment. If the wrongful act consists merely in the mode of doing what the servant was employed to do, the master cannot escape vicarious liability by setting up a defence that such mode of doing had been prohibited by him. In Limpus v. London General Omnibus Co., (1862) 1 H. & C. 526 : (32 L.J Ex. 34), the deft. company was held liable for the accident caused by the act of one of its drivers driving the company's omnibus across the road so as to obstruct a rival omnibus. It was also held to be no defence that the company had issued specific instructions to its drivers not to race with or obstruct other vehicles because the act of the driver, even though done recklessly, wantonly & improperly, was nevertheless an act done by him in the course of his employment & for which his employers were bound to answer irrespective of any question of authority or prohibition. A similar question arose for consideration in Canadian Pacific Railway Co. v. Lockhart, (1942) A.C 591 : (A.I.R (30) 1943 P.C 63), where a servant of the applt. company had, in disregard of written notices by the company prohibiting its employees from using privately owned motor cars for the purpose of the company's business unless adequately protected by insurance, used his uninsured motor car on a journey for the purpose of & as a means of execution of the work which he was ordinarily employed to do, & by negligent driving had injured the resp. In that case it was ruled by the P.G that the means of transport used by the company's servant was clearly incidental to the execution of the work which he was employed to do & that the prohibition of the use of an uninsured motor car merely limited the means by which he was to execute the work & that therefore the breach of the prohibition did not exclude the liability of the company to the resp, for the injury caused by the wrongful act of its servant. The principles underlying these rulings are undoubtedly applicable to the facts of the present case. It is admitted by deft. 1 that on the date of the accident in question, defts. 2 & 3 were under his employment & that it was while they were transporting salt from Nagercoil to Trivandrum in the lorry belonging to him that the accident took place. It has already been found that it was the wrongful & negligent act of defts. 2 & 3 in overloading the lorry & in using a worn out & unserviceable tyre that was directly responsible for the bursting of the tyre & the consequent collision of the lorry with the bus. It is clear that the negligent & wrongful act was done by these defts. in the course of their employment under deft. 1 & while doing the Work which he had assigned to them. No doubt, deft. 1 has contended that he had supplied them with new tyres for the lorry & had directed them not to overload the lorry. Excepting his own assertions regarding these matters there is no reliable evidence in proof of the same. Even if his assertions are true, he is answerable for the negligent acts done by defts. 2 & 3 in violation of his directions. The finding to that effect recorded by the lower Ct. is thus upheld.
8. The extent of the liability of deft. 1 is the next point to be considered in this appeal. Under the first item the lower Ct. has awarded Rs. 852 as the cost of repairing the damages sustained by the bus T.V.R 5998 as a result of the collision with deft. 1's lorry. An estimate of the cost of damages, has been prepared by the Workshop Engineer of the State Transport Dept. Ex. E is a true copy of that estimate & it has been proved by P.W 5 who later on became the Director of the Transport Dept. He himself had seen the bus in the damaged condition & he has stated that Ex. E. represents a fair estimate of the costs of repairing such damages. As a person specially qualified in automobile engineering, he was competent to swear to the acceptability of Ex. E estimate as a fair & reasonable one. In the case of a motor vehicle damaged by collision with another, the standard to be adopted for awarding damages against the wrongful party is by assessing the amount that may be reasonably necessary to meet the expenses of repairing the damages. As for the probable cost the evidence by a competent witness can be accepted. (Vide ss. 339 & 340 of ‘Trial of Motor Car Accident Cases’ by Andrew Deward Gibb). Thus the lower Ct. was right in accepting Ex. E supported by the evidence of P.w 6 & in fixing the amount of damages at Rs. 852.
9. The next two items of damages awarded are Rs. 406-21 Chs. 9 cash representing the amount paid by the pltf. to the driver of the bus towards part payment of the amount awarded to him as compensation under the Workmen's Compensation Act (XXII [22] of 1114 of Travancore) & Rs. 77-3 Chs. 11 cash paid by the pltf. as allowance to the conductor of the bus during the period he was incapacitated from attending to his work. P.W 5 swears to the payment of these amounts to the driver & conductor of the bus & his evidence stands unchallenged. Section 3 of the Workmen's Compensation Act, imposes a liability on the employer to pay compensation to the workman who sustains personal injury by an accident during the course of his employment. Hence the payment made by the pltf. to the driver of the bus who had sustained injury as a result of the collision between the lorry & the bus cannot be said to have been a voluntary payment. On the other band, it was a payment in discharge of a statutory obligation, under Section 15 of the Act, the party paying a compensation is entitled to be indemnified by the person who has been responsible for the injuries sustained by the workman. Thus the plaint claim for Rs. 406-21-9 is clearly sustainable as against deft. 1. Even apart from the provisions of the Workmen's Compensation Act, the general law also enables the pltf. to claim this amount from deft. 1. It is a principle of the common law that a master can maintain an action for the loss of service of his servant by the tortious act of another person. Such an action for the loss of the services of a servant is available to the Crown as an employer as well as to a subject. These principles were affirmed in Attorney-General v. Valle Jones, (1935) 2 K.B 209 : (104 L.J.K.B 358). In that case, two aircraftsmen of the R.A.F who were riding on a motor cycle sustained injuries as the result of a collision between the motor cycle & a motor lorry belonging to the deft. The collision was caused by the negligence of the deft's lorry driver. The injuries sustained by the aircraftsmen rendered them for a time incapable of service. During such period of incapacity they received treatment in a R.A.F Hospital. They were also getting their wages & rations during the period. In the action brought by the Crown against the deft. for recovery of the expenses incurred under these items it was held that the Crown was entitled to maintain a claim against the deft. for loss of service of the men by the tortious act of his driver & to recover any damage which it had thereby suffered. It was further held that the measure of the damage was the amount of the wages & rations of the men during their incapacity & of the expenses of their hospital treatment, the amount of which payments, allowances & expenses if they had not been borne by the Grown, could have been recovered by the men from the deft. as damages. In the present case also the last two items of damages awarded represent the amounts paid by the pltf. to the driver & the coductor of the bus & which amounts could have been recovered by these men from the defts. as damages sustained by them as the result of the negligent acts of defts. 2 & 3. Accordingly we hold that the amount of damages due to the pltf. in this case has been properly assessed.
10. In the result this appeal fails & it is dismissed with costs. Interest on costs at 4 per cent.
11. Appeal dismissed.