1. This rule is directed against a judgment passed by the Judge of the Court of Small Causes, Sealdah in a suit brought by the Corporation of Calcutta against one Baijnath Shaw for the recovery of the sum of Rs. 69-1-6 for damage caused to a lamp post belonging to the plaintiff Corporation by a motor car alleged to be the property of the defendant. The suit in short was an action for damages for negligence. The defendant denied that he was the owner of the motor car in question. The registered number of the car was 10670 and the registered owner was Baijnath Shaw of No. 225-1, Cornwallis Street, Calcutta. It seems that the accident occurred at night. The witnesses of the occurrence were able to take the number of the car which struck the lamp-post but they apparently had no opportunity of ascertaining the name of the person driving, the car at the time or of making any inquiries on the spot as to the ownership of the car. By way of defence to the plaintiff's claim the defendant, as I have stated, denied that he was the owner of the Motor Car No. 10670 or indeed of any other motor car. It is obvious that the defendant was in no wise responsible for the accident or liable for the damage caused.
2. The main issue and indeed the only issue which seems to have been dealt with by the learned Judge at the trial was the plain and simple question of Whether the defendant was the owner of the motor car concerned in the occurrence. It appears that there was considerable delay between the date of the accident and the institution of the suit. The occurrence took place on 3rd April 1930 and the plaintiff's suit was not filed until 27th March 1931. I am informed that in the meantime the Corporation having ascertained from their own records, that the defendant appeared to be the owner of the car entered into correspondence with him as to the question of his liability. It appears that from the very outset this Baijnath Shaw denied that he was the owner of the Car No. 10670. On 13th October 1931, when presumably the plaintiff Corporation of Calcutta, were making ready for the trial of the suit a letter was sent from the Corporation to the Deputy Commissioner of Police, Motor Vehicles Department, in these terms:
“Re-damage to lamp post No. 16, Moyerpur, Road.
3. Dear Sir,
The above lamp-post was damaged by a passing Motor Car No. 10670 on 3rd April 1930. I beg to request you to let me know in whose name the above car was registered on the date of the occurrence.
An early reply will be very much appreciated.”
4. An answer to that letter was written upon the letter itself by the Deputy Commissioner of Police, Motor Vehicles Department, in the terms:
“The Memo No. 12094, dated 29th October 1931. Returned in original with the intimation that the Motor Car No. 10670 is owned by Baijnath Shaw of 225-1, Cornwallis Street, since 17th August 1928.”
5. This memo was signed by E.A Hartley for Deputy Commissioner of Police, Motor. Vehicles Department. The suit came on for trial on 4th February 1932, and the plaintiff in support of their case called certain witnesses who testified that they had seen the Motor Car No. 10670 strike a lamp-post on the Moyerpur Road. No evidence of negligence on the part of the person driving the car was given beyond the mere fact that the car struck the lamp-post. In order to affect the defendant with responsibility for what happened, the plaintiffs put in evidence the letter of 13th October with the reply of 29th October 1931, endorsed upon it in the way I have described and they called a subordinate clerk from the Motor Vehicles Department to testify that the signature “E.A Hartley” as appeared on the document was that of the officer acting for the Deputy Commissioner of Police. Beyond that no evidence whatever was given to connect the defendant Baijnath Shaw with the motor car which damaged the lamp-post on 3rd April 1930. It appears however that the summons in the suit was served on the Baijnath Shaw who appeared in the suit and he in fact made no protest against acceptance of the summons. But he, in his written statement denied that he was the owner of the car and at the trial he himself gave evidence to the same effect, and apparently he put forward the suggestion that a mistake had occurred because he himself resides at No. 225, Cornwallis Street, whereas the address of the Baijnath Shaw who is said to be the owner of the car, appears in the Register as 225-1 Cornwallis Street. The learned Judge came to the conclusion that the plaintiffs had sufficiently established that the defendant was in fact the owner of the motor car. He said:
“Defendant denied that he was the owner of the motor car. But it appears from the report of the Deputy Commissioner of Police that this Car No. 10670 is owned by Baijnath Shaw of 225-1 Cornwallis Street and it appears that he is the defendant in this suit. In the plaint his address was given as above and summons was served on him in that address and he appeared and raised no objection that he did not reside there. Hence his identity has been well established.”
6. The learned Judge proceeded to say:
“I find that the defendant is the owner and is liable.”
7. This rule was issued on the ground that the memorandum on the letter of 13th October 1931, was not properly admissible in evidence in proof of the ownership of the motor car. I am bound to say that there is some substance in that contention. The right way of proving an entry in the Register of Motor Vehicles would be either that the register itself should be produced by a proper official or a duly authenticated copy of the material part of the register placed before the Court. It is obviously somewhat irregular for the Court to have accepted in proof of the ownership of the car a mere statement made in answer to a letter written by the plaintiff corporation without the person who made the statement being called or a certified copy of the official register produced. In any event it seems more than a little doubtful as to whether it can rightly be said that the mere fact that the register shows that a person of a particular name lives at a certain address as given in the register necessarily, for all purposes, decides that any person of the same name who happened to be found in that address, must be the owner of the particular car in question, especially having regard to the fact that it is quite possible that there might be another person of the same name living in the same house, particularly having regard to the frequent occurrence of similar names in this country and to the fact that in a large city like Calcutta often a number of families live, in a cluster of dwellings which are described under one denomination. However, as regards that point, the learned Judge seems to have thought that because the defendant lived or appeared to live at 225-1, Cornwallis Street, it had been satisfactorily established that he was the owner of this particular car. The learned Judge came to a finding of fact upon that and in the ordinary way a finding of fact ought not to be disturbed. I cannot however help expressing considerable doubt as to whether it was properly established that the Baijnath Shaw who appeared as defendant in the suit was in fact the Baijnath Shaw in whose name the car was registered. The defendant gave a categorical denial that he was the owner of this car. For the sole purpose of ascertaining whether there was any good reason for supposing, as was suggested on behalf of the Corporation, that the defendant had wilfully committed perjury, when he made that statement before the trial Court. I thought it right to have the defendant before me and in this Court he has reiterated his denial of ownership. The defendant impressed me as telling the truth. He stated definitely that he had never possessed this or any other motor car at all. But apart from that aspect of the matter, the learned Judge clearly misdirected himself by acting upon the assumption that because he had found the defendant to be the owner of the motor car, that of itself was sufficient to fix him with liability for the accident which happened some 18 months before. Generally speaking in running down cases or as they are now sometimes called collision on land cases the plaintiff is not entitled to succeed unless he gives affirmative proof of negligence on the part of the defendant or his servant. Persons who base a claim on negligence must prove negligence and in the present case, as I have already indicated, the plaintiff gave no evidence whatever of negligence on the part of the defendant or his servant.
8. It is true that this is one of the class of cases where the ordinary rule does not apply in its entirety. The law provides that when a vehicle is shown to be under management of the defendant or his servant and an accident occurs such as in the ordinary course of things does not happen, if he who has management uses proper care, the onus exceptionally rests on the defendant to disprove that the accident arose from want of care. The authority for that proposition is the case of Isaac Walton & Co. v. Vanguard Motor Bus Co. . 1908 25 TLR 13: see also the case of Barnes Urban District Council v. London General Omnibus Co. . 1910 100 LT 115. In the first-mentioned case a standard lamp erected on the footpath in front of the plaintiffs' premises was damaged by a motor-omnibus of the defendants colliding with it. The motor omnibus had in fact skidded into the lamp-post, and the Lord Chief Justice (Lord Alverstone) in his judgment at p. 14 said that there was evidence upon which the jury might come to the conclusion that there was negligence on the part of the driver of the vehicle. It may be taken therefore where there is a lamp-post on the pavement and a vehicle collides with it, that of itself is prima facie evidence of negligence on the part of the driver of the vehicle. It is in fact a case where the principle of res ipsa loquitur applies and when there is prima facie negligence on the part of the driver of the vehicle in that way the onus then shifts on the defendant to show either he was not the driver, or if the driver is the defendant's servant then that there was in fact no negligence on the part of the driver. Before however a case is taken out of the ordinary rule that the plaintiff must prove negligence in order to succeed it must first of all be positively demonstrated that the vehicle causing the damage was at the time of the accident, as a matter of fact, under the management of the defendant or his servant. In the present case the plaintiffs made no attempt to show and indeed were not in a position to show who in fact was the driver of the vehicle and whether it was the defendant himself or a person for whose acts he would be responsible. There was in point of fact nothing whatever before the Court to indicate that even if the defendant was really the owner of the motor car No. 10670 at the time of the occurrence on 3rd April 1930, such motor car was under the management of the defendant or his servant at the material time. I am therefore of opinion that even upon the assumption that the car did belong to the defendant, the plaintiffs had not succeeded in establishing their case according to law. I think that on the whole it is extremely dubious whether the defendant Baijnath Shaw had any connexion whatever with the motor car No. 10670 and it is certain that even if he were the owner, the plaintiffs did not establish negligence against him either by affirmative evidence on their part or by shifting the onus of proof on the defendant and his failing to discharge that onus. This rule is accordingly made absolute and the order of the Small Cause Court Judge, Sealdah, is set aside and the plaintiffs' suit dismissed with costs, one gold mohur.
M.N
9. Rule made absolute.