008-NLR-NLR-V-59-K.-SUBRAMANIAM-Appellant-and-S.V.P.-SUDALAIMANY-NADAR-Respondent.pdf
K. D. do SILVA, J.—Subratnaniatn v. Sudalaitnany Nadar
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Present: Gratiaen, J. and K. D. de Silva, J.
K. 3UBR AJLANTAM, Appellant, and S. V. P. SUDAIiAOLANY NADAR,
Respondent
S.C. 5S9—D. G. Colombo, 30,472}M
Delict—Master and servant—Loan of car—Negligence of driver—Injury to borrower—
Liability of owner—“ Course of employment "—Burden of proof.
Where A borrows B’s car and is injured in consequence of the negligent drivingof B’s driver, A is entitled to recover damages from B, unless B can show thathe had placed tho driver under tho complete control of A.’.
Where a plaintiff establishes that damage has been caused to him by thenegligent driving of the defendant’s motor car, the fact of ownership is printafacie evidence that the car was driven, at tho material time, by tho owner or byhis servant or agent-.
A.
•tiPPEAL from a judgment of the District Court, Colombo.
Ivor Misso, with R. Manicavasagar, for plaintiff-appellant.
V. A. Kandiah, for defendant-respondent.
.Cur. adv. trail.
September 21, 1955. de SrLVA, J.—
This is an appeal from the judgment of the District Judge, Colombo,dismissing the plaintiff’s action to recover damages resulting from, amotor-car accident…..
1 22 Tax Cases SI.
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K. D. de SILVA, J.—Subramaniam v. Sudalaimany Kadar
The defendant is the owner of motor-car bearing No. C. IT. 4738. Heresides in India, but he carries on a business in Colombo. His Attorneyin Ceylon is one V. Chelliah. On October 17 th 1952, the plaintiff borrowedthis car from Chelliah to go toNegombo. It was driven by the defend-ant’s driver M. W. Perera who was instructed by Chelliah to take theplaintiff to Negombo and bring it back before 2.30 p.m. that day.Accordingly the driver took the plaintiff and two others to Negombo.They left Negombo at about 1; 15 or 1.30 p.m. on the return journey.When they had proceeded about 16 miles from Negombo they met alorry proceeding in the same direction. At the time, this car was beingdriven, according to the driver,-at a speed of 30 or 45 miles per hour.The defendant’s driver wanted to overtake this lorry and sounded hishorn. Then he saw a hand from the lorry moving forward and he con-cluded that it was the signal for him to overtake. Thereupon heincreased his speed and swerved the car to the right and attempted toovertake the lorry when he found a car coming in front of him from theopposite direction. He then swerved the car to the left and appliedthe brakes in order to prevent a collision with the lorry. The car howeveroverturned and fell on its side in the middle of the road. As a result of theaccident the plaintiff sustained a compound fracture of the left radiusand also an injury to the medial nerve of the left forearm. In conse-quence of these injuries the plaintiff had to remain nearly two weeks inhospital and also had to undergo two operations. Dr. Francis Silva whoattended on him stated in his evidence that the plaintiff’s left forearm wasincapacitated to the extent of 20 to 25 per cent.
The plaintiff instituted this action to recover a sum of Rs. 5,000 asdamages on the ground that the accident was caused bj' the rash andnegligent manner in which the defendant’s vehicle was being driven atthe time. The defendant filed answer stating, inter alia, that the over-turning of the car was due to the state of the road at the time and thereforeit was beyond the control of the driver. In other words, he set up thedefence that it was an inevitable accident. There was also a generaldenial that the driver was acting in the course of his employment at thetime.
The case proceeded to trial on the following issues :—
Was motor-car No. C.N. 4738, belonging to the defendant drivenby his driver, acting in the scope of his employment on 17.10.’52 ?
Did the said car overturn as the result of all, or any of the acts
of negligence on the part of the driver of the car, set out in para 4of the plaint ?.
What damages, if any, is plaintiff entitled to recover from the
defendant ?.
The learned District Judge held that the plaintiff had failed to provenegligence on the part of the defendant’s driver. He also took the view .that the driver was not acting within the scope of his employment. Hefurther held that the plaintiff had failed to prove that Chelliah wasthe defendant’s Attorney at the time in question. Accordingly, hedismissed the plaintiff’s action with costs. –
JC. T>. (lc SILV.-l, J.—Subramaniarn v. Sudalaitntv}’/ Kadar
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lam unable to agree with the trial judge that the plaintiff had failed toestablish negligence on the part of the driver of the car. The driver whogave evidence for the defendant admitted that at the time he saw thelorry ahead he was driving at a speed of 30 or 45 miles an hour. Whenhe attempted to overtake the lorry he increased that speed further.At the time the road was wet. The driver also admitted that he did notsee clearly the signal alleged to have been given by the lorry driver.What he in fact saw were four fingers projecting from the lorry. Headmitted that, as he was in a hurry, he concluded that this was a signalfor him to overtake. On this evidence it is not possible to hold that thedriver of the lorry in fact gave the signal to overtake. Even if such asignal was given the responsibility was still with the driver of the carto satisfy himself that the road ahead was clear. Section 150 (3) of theMotor Traffic Act of 1952 enacts that a motor-car shall not be driven soas to overtake other traffic unless the driver has a clear and unobstructedview of the road ahead. This is a rule of the road the breach of whichis an offence. That the defendant’s driver had no unobstructed viewof the road is clear from the fact that immediately he took his vehicleto the right to overtake the lorry he found himself suddenly confrontedwith a car coming from the opposite direction. He admits that therewould have been a head-on collision with that car if he proceeded anyfurther in that direction. Not only did he fail to have a clear and anunobstructed view of the road ahead when he attempted to overtake thelorry but he also attempted to overtake it at a speed which must be con-sidered to be dangerous considering the fact that the road was wet at thetime. It is therefore clear that the overturning of this car was due to thenegligent driving of the driver.
The learned District Judge has also erred in holding that the defendant’sdriver was not acting within the scope of his cmploj'ment. Admittedly,M. W. Perera drove the defendant’s car on the day in question at therequest of Cliclliah. If Chelliah was the Attorney of the defendantthe latter would be prima facie liable in damages if the accident was dueto negligence of his driver. I have already held that negligence on thepart of M. W. Perera lias been established. The learned District Judgetook the view that the driver was not acting within the scope of hisemployment probably because the plaintiff had borrowed the car on thisoccasion. That however does not relieve the defendant of his responsi-bility for the negligence of the driver. It was so held by this Court inJafferjee v. Munasinghe *. The burden is on the defendant—and thisis a heavy burden—that he had placed the driver under the completecontrol of the plaintiff, if the defendant seeks to escape liability—MerseyDocks and Harbour Board v. Coggins and Griffiths (Liverpool) Ltd. andMcfarlane There is no evidence whatsoever that when the car waslent to the plaintiff the driver was placed under his control. On thecontrary, the driver was canying out the instructions of Chelliah in thecourse of this journey. Chelliah had ordered the driver to bring backthe car before 2.30 p.m. Indeed, the driver admitted that he was anxiousto overtake the lorry because he was in a hurry. He further stated thatthe only instructions he got regarding the use of the car that day were
1 {1001) 02 A L. R. 313.
(1940) 2 A. E. R. 345.
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Silhy Raheetn v. Uafeel
from Chelliah. Where a plaintiff has established that damage has beencaused to him by the negligent driving of the defendant’s motor-carthe fact of ownership is prima facie evidence that the motor car, at thematerial time, was driven by the owner or by his servant or agent—Barnard v. Sully l. In this case it has been established that the defend-ant’s car was driven by M. W. Perera. That amounts to prima facieevidence that M. W. Perera was a servant or the agent of the defendant.Indeed, it is not denied that M. W. Perera was in fact the servant of thedefendant at the material time.
The learned trial Judge also took the view that the plaintiff had failedto prove that Chelliah was the Attorney of the defendant. Chelliah wascalled as a witness by the plaintiff. He produced his power of Attorneyfor the year 1954 and stated that during the years 1952 and 1953 alsohe was the Attorney of the defendant. His evidence stands uncontra-dicted. It was not even suggested to him in cross-examination that hedid not have the power of Attorney from the defendant during the year1952. On this evidence the learned District Judge should have held thatChelliah was the Attorney of the defendant at the time of the accident.The answers to issues 1 and 2 should be in the affirmative. The plaintifftherefore is entitled to recover damages from the defendant. Thelearned District Judge stated in his judgment that if the plaintiff suc-ceeded in the action he would not have been entitled to recover more thanUs. 1,500. In m)- view Its. 1,500 is a fair assessment of the plaintiff sdamages. I would therefore allow the appeal and enter judgment for theplaintiff in the sum of Its. 1,500 with costs in both Courts.
Gratiaen, J.—I agree.
Apjteal allowed.