Stanes Motors Ltd. vs Vincent Peter, by his next friend and mother and second Respondent herein Mrs. Ruth Aaron Peter

Cronish, J.—This appeal arises out of a suit to recover compensation under the Fatal Accidents Act. The plaintiffs are the widow and the

infant son of the deceased whose death was caused by the alleged negligence of the appellant''s motor-driver, one Babjee. At the time of the

accident the car was being driven by a fitter in the employment of the appellants, Babjee being in the car reclining in the back seat. He says he was

asleep at the. time of the accident and had no knowledge that the fitter was driving the car, until he was aroused by the shock of the impact. This

very improbable story has been disbelieved by the lower Court. There can be no doubt that Babjee entrusted the driving of the car to the fitter

who was not authorised by his employers to drive their car and ""who, on his own admission, had no experience as a driver. Indeed the learned

Counsel for the appellants does not dispute that the accident was due to the negligence of the driver. The substantial question argued is whether his

negligent act was committed by the driver while he was in the course of his employment.

The true facts to be derived from the evidence are that the car was taken by the driver to Mr. Catling, a customer of the appellant-firm, whose

car was undergoing repairs, on Saturday the 23rd April 1932; and that the instructions of the manager of the appellant-firm, Mr. Dupan, to the

driver were that he should bring the car back to Mr. Dupan''s bungalow when Mr. Catling had finished with the car. The car was taken at 5-30

P.M., that evening to Mr. Catling and Mr. Catling used it till 9-30 P.M., that night. The lower Court has accepted the driver''s story that Mr.

Catling told him to bring the car the next morning (sunday) at eight O''clock. This evidence was. not contradicted by any other witness, and the

probability is that the story is true. Having finished with Mr. Catling at 9-30 P.M., on Saturday night the driver took the car back to the appellants''

works and drove away with it at about 10 P.M., This is according to the evidence of the watchman. As the works were closed at 6 P.M., the car

could not be left there in the garage for the night. The driver went to his home in the car, had his food, and drove off to a drama, returning home at

2 A.M., on Sunday morning. He slept in the car that night. That is the driver''s story.

However that may be, one thing is quite clear that on Sunday morning he started off at about 7-30 A.M., in the direction which led to Mr.

Catling''s bungalow about a mile distant, and that the accident happened while he was on the way. As already stated the driver was taking the car

to Mr. Catling in accordance with his instructions. He ought to have gone to Mr. Dupan''s bungalow on the previous night. But the circumstances

that he had deviated from the strict order of his master will not relieve the appellants from liability for his negligence if at the time of the negligent act

he was in the course of his employment.

The rule in such cases has been stated by Parke, B. in Joel v, Morison (1834) 6 Car. & p. 501 : 172 E.R. 1338 thus:

If the servants, being on their master''s business, took a detour to call upon a friend, the master will be responsible... The master is only liable

where the servant is acting in the course of his employment. If he was going out of his way, against his master''s implied commands, when driving

on his master''s business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master''s business, the

master will not be liable.

Again, in Storey v. Ashton (1869) L.R. 4 Q.B. 476. Cockburn, L.C. J. says:

The true rule is that the master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of

negligence, in the course of his employment as servant. I am very far from saying, if the servant when going on his master''s business took a

somewhat longer road, that owing to this deviation he would cease to be in the employment of the master, so as to divest the latter of all liability; in

such cases, it is a question of degree as to how far the deviation could be considered a separate journey.

In the same case, Lush, J., said:

The question in all such cases as the present is whether the servant was doing that which the master employed him to do

In the present case it is a fair inference that when the driver had left Mr. Catling''s house he had decided to use the car for his own purpose. The

trip to the drama to which he says he treated himself had no relation to his master''s business. And if on the Sunday morning the accident had

happened while he was returning in belated obedience to his orders to Mr. Dupan''s bungalow we think that it could not have been held to have

occurred in the course of his employment. The expedition would have been from first to last solely for the driver''s own purpose. And the case

would have stood on the same footing as Mitchell v. Crassweller (1853) 13 C.B. 237 : E.R. 1189 and Rayner v. Mitchell (1877) 2 C.P.D. 357.

But we are satisfied that on Sunday morning the driver was taking the car to Mr. Catling in pursuance of his overnight instructions. And that was in

the scope of his employment, because Mr. Dupan has stated in his evidence, that the driver had instructions to attend to Mr. Catling. It can make

no difference that the driver, for his own convenience, and in deviation from his orders had started from his home instead of starting from Mr.

Dupan''s bungalow; because the errand that he was then on was connected with his master''s business and accordingly within the scope of his

employment.

For these reasons we are of opinion that the negligent act was committed by the driver in the course of his employment. It follows that the

appellants are liable for their servant''s act.

There remains the question of damages. Under the Act the suit is to be for the benefit of a wife, husband, parent and child. The learned Judge in

the Court below has awarded Rs. 1,500 to the mother of the deceased and Rs. 3,000 each to the widow and child. The rule is that the damages

must be fixed solely with reference to the pecuniary loss sustained by the relatives of the deceased in respect of past contributions or in respect of

reasonable expectation of future pecuniary benefit from the deceased. The plaintiff must adduce evidence affording a reasonable basis for the

ascertainment of the pecuniary loss so inflicted. See Barnett v. Cohen (1921) 2 K.B. 461. The mother has adduced no such evidence. There is no

proof that she has suffered pecuniary loss in consequence of the death of the deceased. Consequently the award of compensation to her cannot

stand.

With regard to the widow and child no sufficient reason has been shown why we should interfere with the amount awarded. There is evidence

that the deceased was a skilled mechanic capable of earning Rs. 90 or Rs. 100 a month. In these circumstances it seems to us that the income

which is likely to be obtained from the capital amount awarded by the Court below is not an unreasonable amount of compensation.

For these reasons the amount of total compensation awarded will be reduced to Rs. 6,000 payable to the widow and the child and the appeal

in other respects will be dismissed with costs.

With regard to the memorandum of objections that interest at six per cent, ought to have been allowed on the decree amount, we allow interest

at the rate of six per cent, per annum on the amount of compensation namely, Rs. 6,000 from the date of the Lower Court''s decree. There will be

no order as to costs on the memorandum of objections.