Surendra Nath Koley and Others vs Kali Kumar Sen and Another

Ram Labhaya, J.—This is an appeal from the judgment and decree of the Additional Subordinate Judge, Upper Assam Districts dated 2-12-1950 granting plaintiffs a decree for Rs. 12,250/- against defendants 1 to 5 who have appeased. The suit was dismissed against defendant 6 Plaintiffs have put in cross objections praying for inclusion in the decree of certain items which have been disallowed.

Plaintiffs'' case shortly stated is as follows:

Plaintiffs are two brothers. They owned three elephants. These elephants were hired by defendants 1 to 4 through defendants 5 and 6, their employees. Defendant 5 was their manager with power to bind them with the agreement of hire. Defendants 1 to 4 are the proprietors of a sawmill located at Bhanga Bazar within Karimganj Sub-division. Defendant 5 is in charge of the management of the mill and defendant 6 is an employee under him.

Defendants 5 and 6 entered into an agreement of hire of three elephants namely ''Rajpati'', ''Fulmati'' and ''Mohan''. The hire of these elephants was for work in forest block No. 61. The elephants were to drag the timber. According to plaintiffs, defendants 5 and 6 took the elephants from plaintiffs for and on behalf of the defendants 1 and 4 on terms which are stated to be as follows:

(1) The three elephants are to be kept engaged in works of the defendants from 1-4-1940 to 30-9-1946 for six months and after the completion of six months the defendants will have to return back the elephants to the plaintiffs.

(2) The daily hire of the elephant ''Rajpati'' including daily remuneration of the Mahut was fixed at Rs. 13-8-0, and the daily hire including the remuneration of the Mahuts of ''Fulmati'' and ''Mohan'' was fixed at Rs. 12-8-0 per elephant and Mahut. The defendants had to pay Rs. 1,300/- towards the hire of the elephants in advance.

(3) The elephants will be kept engaged in works sixteen days in a month and not more than sixteen days.

(4) During the hire period the three elephants will be in absolute custody of the defendants and the Mahuts of the elephants will also be under the control of the persons appointed by the defendants & the Mahuts will engage the elephants in works under the direction of the agents of the defendants. The defendants will bear all the expenses, if the elephants are impounded or, fall ill and also the expenses of reaching back the elephants to the plaintiffs after the comple. tion of the period of works.

(5) The defendants will have to pay hire in advance before the amount of Rs. 1,300/- to be paid in advance and adjusted against the hire money that falls due. The defendants will not engage the elephants in work before any advance is made. The defendants will have to send an, account of the period the elephants are engaged in work in the previous month within the first week of the subsequent Bengalee month. The account will have to be rendered regularly.

(6) The employees of the Saw Mills of the principal defendants will take the elephants from the house of the plaintiffs. After the completion of six months the defendants will return back the elephant to the plaintiffs at their houses. From the time the elephants are taken charge of by the defendants till they are returned back to the plaintiffs the defendants will be liable for the upkeep, maintenance and safety of the elephants.

In case the Mahuts of any of the elephants fall ill or become incapable to engage the elephants in work, then the defendant will keep the elephants engaged in works with the Mahuts appointed by the defendants with proper care and due diligence. The defendants will have to bear all the expenses that may be required to be spent in case the elephants are found missing in the jungle during the period the elephants remain in. the custody of the defendants and the defendants will have to recover them till they (elephants) are returned back to the plaintiffs.

In case the elephants or any one of them are not traced or found out after search the defendants will remain liable to the plaintiffs for the loss of the elephants and the defendants will be bound to compensate the plaintiffs for any loss that they occasion to them (plaintiffs).

In pursuance of the agreement of hire defendants paid a sum of Rs. 300/- on 3-12-1945 and Rs. 1,000/- on 6-3-1946, altogether Rs. 1,300/-to plaintiffs. On 25th March the elephants were sent to the defendants for being taken to the forests. The three Mahuts were in charge of the {three elephants. After these elephants had worked in the forest for some time two Mahuts--Gaurl who was in charge of ''Fulmati'' and Satish the Mahut of ''Rajpati''--left the forest, leaving the elephants there. Bashi, the Mahut of the third elephant remained behind.

Plaintiffs have averred that Gauri had fallen ill and had to be taken back to his house. Satish was asked to accompany him. Defendants on the other hand contend that the Mahuts left for no particular reason leaving the elephants behind. It is common ground however, that Gauri and Satish did come back leaving the elephants in the forests. This was in the middle of May, 1946. On 22-5-1946 defendant 5 informed the plaintiffs that the two Mahuts had left and that they should send their substitutes.

He also proposed in the letter that he had two suitable. Mahuts in view whose services could be availed of and if he was permitted he could employ them. Plaintiffs aver that they intimated to defendant 5 to employ them and in fact two Mahuts were employed. Later they were informed that all the three elephants were found missing. After some search two were found and one elephant ''Rajpati'' by name could not be traced. Their case is that defendants were bailees.

They failed to take reasonable care of the elephant and it was due to their negligence that the elephant was lost. They therefore claimed the price of the elephant which they assessed at Rs. 15,000/-. In addition to this they claimed Rs. 2,183/- on account of expenditure incurred on the search of the missing elephant. Two more items (1) a sum of Rs. 1.400/- as damages for the period that the elephants could not work and (2) Rs. 200/- as arrears of the hire money due were also claimed.

Defendants 1 to 4 put in a joint written statements. Their case was that they had not entered into any agreement of hire with the plaintiffs either personally or through defendants 5 and 6. Defendants 5 and 6 were their employees. But they had no power to bind them with any agreement of hire. No elephants were received from the plaintiffs nor did they ever become bailees of any elephants.

Their plea was that actually the hire agreement was entered into between plaintiffs on one-side and Sonahar and Shawkat Ali, the lessees of forest block No. 61 on the other and defendants 5 and 6 merely stood sureties for the payment of a sum of Rs. 1,300/- which Sonahar Ali and Shawkat Ali had to pay by way of advance. This amount was paid. Beyond that defendants had no responsibility. Defendants 5 and 6 also aver that they did not enter into any contract of hire and therefore there could be no question of their'' liability on any basis.

The learned Additional Subordinate Judge-found (1) that the defendants hired the elephants; in question for work in forest block No. 61 and their plea that Sonahar Ali and Shawkat Ali hired the elephants had not been substantiated, (2) that defendants were the bailees and they had failed to show that they had taken such reasonable care of the elephants as would absolve them from responsibility for the loss caused to plaintiffs by the disappearance of ''Rajpati''. They therefore were liable for loss.

He further found that the value of the elephant would be about Rs. 12,000/-. He allowed plaintiffs another sum of Rs. 250/- on account of expenditure incurred on the search. The rest of the items of plaintiffs'' claim were disallowed.

Mr. Ghose, the learned Counsel for the appellants has argued that the finding arrived at by the learned trial Judge in respect of the agreement of hire between plaintiffs and defendants is erroneous. The evidence does not justify it. His case is that no such hire agreement was arrived at between the parties to the case. He emphasized that the agreement was entered into by Sonahar'' Ali and Shawkat Ali as pleaded in the written. statement.

His second contention was that even if there'' was an agreement of hire between the plaintiffs and the defendants, no case of bailment was made out nor was there any loss due to any negligence on the part of the defendants. He also disputed the finding about the price of the elephant arrived at by the learned Additional Subordinate Judge....

The main question that arises in appeal is whether on facts which may be regarded as proved there was any case of bailment of the elephant and the Mahut and defendants could be held to be bailees.

But before considering the question of bailment it is necessary to consider the first contention raised as to whether there was any contract of hire between the plaintiffs and the defendants. Evidence on the point is all one way. It all consists of documents which conclusively establish that the agreement of hire was entered into between plaintiffs on one side and defendants on the other through the agency of defendants 5 and 6. Sonahar Ali or Shawkat All was not in the picture at all.

(After discussing documentary evidence his Lordship proceeded):

These documents constitute unimpeachable and irrefutable evidence of the fact that the hire agreement was between plaintiffs on the one side and defendants 5 and C on the other who were acting on behalf of defendants 1 to 4. It may also be remarked that if Sonahar Ali had any interest in this hire agreement, it should have been very easy for the defendants to produce Sonahar Ali to state the facts as they were. It is apparent that Sonahar Ali and his brother are not accepting any responsibility arising from the agreement (sic) hire.

In these circumstances it is not necessary to consider any oral evidence bearing on the point. The conclusion arrived at by the learned Judge that the agreement of hire was between plaintiffs on the one side and defendants on the other is undoubtedly correct and we entertain no doubt whatever as to its correctness.

It follows that any liability arising from the contract would be borne by defendants 1 to 4 as principals. Defendants 1 to 4 did no doubt assert in their written statement that defendant 5 and defendant 6 had no right to bind them with any such agreement of hire. But on this point no evidence has been produced. On the other hand the contents of Ex. E show unmistakably that defendant 5 was the manager in charge of the Saw Mills. He had full authority as the sole manager of the Mill to enter into the agreement Ex. E with Sonahar Ali and his brother.

The agreement was for the purposes of the Mill. The defendants have not challenged the power of the manager to enter into this agreement with Sonahar Ali and his brother. If he could enter into an agreement with Sonahar Ali for forest work, he would have naturally the power to do everything incidental to the working of the block which he was taking over. The hiring of elephants was expressly provided for in the agreement. Defendants 1 to 4 therefore are bound by the agreement of hire.

We have next to ascertain the terms of the agreement of hire expressly agreed to. This is a very important question in this case. The plaintiffs have put forward a rather tall claim. They have given an impressive list of the terms of this agreement. There are no less than six elaborate conditions and these terms go into very minute details. They cover almost all conceivable contingencies that parties could have been confronted with in the course of this agreement of hire.

The agreement however is oral. One of the plaintiffs has come into the witness box and he has deposed that there were negotiations going on in the middle of November. Terms were settled. It was on 3rd December when a sum of Rs. 300 was paid that the contract was concluded and later on the balance due as advance was paid in March and the elephants were delivered to the defendants along with the Mahuts in pursuance of the agreement of hire.

The important terms which bear on the question of bailment are Nos. 1, 4, 5 and 6. According to these terms there was delivery. There was also an express agreement for redelivery. The Mahuts and the elephants were to be in the custody and under the control of the defendants during the period of hire. The defendants were all also responsible for the upkeep, maintenance and the return of the elephants.

Everything that the defendants would have been responsible for as bailees was according to plaintiffs expressly agreed to. It would be extremely improbable for any one out of the parties or for the matter of that any other to keep all these terms in memory for a very long time. Where terms settled are as stated in the plaint the parties would at once feel the need for preparing a memo of these terms, for otherwise in the case of a dispute arising it would be well nigh impossible to prove them.

The plaintiffs seemed to realise this and therefore the plaintiff who came into the witness box deposed that at the time the terms were settled, there was a previous written agreement in the possession of the plaintiffs. It was shown to the defendants, the other party and they agreed to the terms of that agreement. It follows that the terms stated in the plaint should be the terms of that particular agreement. This could have served as a substitute for a writing and it was presumably for that reason that this version was put forward. But the version had to be substantiated.

The plaintiffs have not been able to produce that agreement, the terms of which were accepted or agreed to by the defendants. They give no reason for not producing it. There is thus no writing from which the terms of the agreement of hire could be ascertained.

The learned trial Judge appears not to have attached any importance to the allegations of the plaintiff that the agreement of hire had all these terms which were stated in the plaint all that he found is that there was an agreement of hire in pursuance of which elephants with Mahuts were sent to the forest. Prom this he inferred bailment without giving any finding as to whether the terms on which the plaintiffs have relied were expressly agreed to by the defendants or not Mr. Ghose, the learned Counsel for the appellants has very rightly contended that in the absence of any finding the only presumption is that the learned Judge thought that these terms were not proved. Mr. Lahiri, the learned Counsel for the respondents has made no attempts to show that the plaintiffs had substantiated these terms by any evidence. It. is true that one of the plaintiffs himself deposed to these terms.

One of his employees also appeared and supported him. But even the learned Counsel for the plaintiffs respondents has not been able to contend that the testimony of these two interested witnesses amounts to adequate proof of the allegations that the agreement of hire had all these terms and stipulations stated in para 2 of the plaint. He has also taken the line adopted by the learned trial Judge that there was an agreement of hire and in pursuance of this agreement, elephants were sent to the forest and therefore there was a contract of bailment.

He has not argued that allegations of the plaintiffs that the elephants were to be kept by the defendants for the period of the contract and had to be returned after its expiry, that during the period of hire the elephants were to be in the absolute custody of the defendants and the Mahuts of the elephants were also to be under the control of the persons employed by defendants-and other similar conditions emphasizing bailment, have been proved to have been expressly agreed upon between the parties.

Leaving these terms out of account we have now to see what exactly has been proved before going to the question whether admitted or proved facts of the case constitute bailment in law.

(1) There can be no manner of doubt that elephants were hired. The elephants were to remain in the forest for dragging timber during a period of six months. The elephants alone could not be delivered to the defendants for work. The Mahuts had to accompany them, for without the Mahuts the elephants could not be put to use. The hire agreement therefore would involve the taking of the elephants to the forest with the Mahuts.

(2) Exhibit 3 shows that the defendant agreed (sic) pay Rs. 13/8/- for each working day for Rajpati. This includes the fees of the Mahut which means the salary which the plaintiffs were paying to the Mahut. The daily wages thus include the wages for the use or service of the elephants as well as of the Mahuts. The plaintiffs have not proved for how many days in each month the elephants were to work. It does not appear to be disputed, however, that when elephants are hired for work they normally do not work every day. They have to be given some rest.

The period of work varies generally from 16 to 20 days. This is evidenced by agreements C and D produced by defendants themselves though for another purpose. They produced those agreements to show that conditions of the nature that plaintiffs were relying on normally formed no part of agreements of hire in this part of the country This is all that can be ascertained about the terms of the agreement of hire.

It is in pursuance of this arrangement that the elephants were sent to the forest and it is on the terms of this arrangement that it has to be determined whether there was any bailment.

Bailment is defined in Section 148, Indian Contract Act.

A ''bailment'' is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the ''bailor''. The person to whom they are delivered is called the ''bailee''.

It involves essentially the delivery of goods including animals. Section 149 of the Act deals with the method or the manner of delivery and the other sections in this Chapter deal with the responsibility or the obligation of the bailee towards his bailor. Where goods or animals are delivered with conditions express or implied for re-delivery, there is bailment. No difficulty would arise there fore if it was a case of chattle alone. If elephants had been delivered to the defendants for a period of six months for use in the forest there no doubt would have been a case of bailment.

But difficulty arises in a case where chattel such as elephants as in this case are hired with an attendant who is indispensable for their use. When servants or employees go with the ''goods'' within the meaning of Section 148, Contract Act, difficult questions as to the nature and the effect of the agreement have arisen as will be seen from cases which I now proceed to consider.

In A.H. Bull and Co. v. West African Shipping Agency and Lighterage Co.'' AIR 1927 PC 173 (A), some previous important decisions bearing on the question before us were considered. In that case the parties were ship-owners and according to the requirements of the trade one was letting out his lighters to the other. In June 1825 the appellants let on hire to the respondents a lighter. There was no written agreement of hire.

Part of the agreement was that the lighter should be, as is usual, manned by two lighter boys, that is, coloured labourers. The lighter was transferred on the 2nd June and the incident from which the case arose occurred on the night of the 5th June. The two boys had left the lighter and the lighter was destroyed during the course of the night. The lighter was to be used by the defendants for the purpose of loading groundnuts on to their steamship. The two boys were bound to obey all orders of the defendants regarding the attachment of the lighter to the ship.

Their lordships of the Privy Council examined the evidence and came to the conclusion that the appellants had entrusted for the period of the hiring the control of their chattel to the respondents. The lighter was manned by the two boys and from the very nature of the case the lighter and the men both went out of the control of the plaintiffs and their Lordships thought that it was unreasonable to suggest that this control only lasted while the active work of lighterage was being carried on; and the suggestion that the lighter boys passed into the control of the defendants during that active lighterage but out of the control and back into the service of the plaintiffs when the ship was tied up for the night, seemed to have nothing to commend it.

Of the three possibilities which can occur in a hire agreement of this nature this is one and this was completely ruled out by their Lordships. The control and the possession of chattel may pass to the hirer, or the owner may retain it while lending its use. But this third possibility that the control keeps on shifting while the chattel is being used or not used as the case may be was considered as something which had no merit in it. It may therefore be said that we may not read into the agreement of hire in this case that elephants were under the control of the plaintiffs when off duty and under the control of the defendants when on duty. This is not even the plaintiffs'' case. They were either under the control of the plaintiffs or of the defendants all through. There could be no shifting of control from day to day or from period to period in any single day.

Having found that the lighter and the boys passed out of the control of the appellants their Lordships proceeded to examine the legal position. They referred to--Donovan v. Laing Wharton & Down Construction Syndicate'' (1893) 1 QB 629 (B), for a clear exposition of he question as to whom attaches the responsibility for the act of a servant transferred, so to Speak, for the convenience of working a chattel lent or hired to another. Their Lordships observed as follows;

In a sense, that is to say a general sense, he is the servant of the master who sends him, but upon the practical point of responsibility, when he is doing the work of and under the orders or control of the other employer to whom he is sent, he is, in the eye of the law, the servant of the latter and the latter is, in the eye of the law, his employer.

In ''Donovan''s case (B)'', the defendants contracted to lend to a firm, who were engaged in loading a ship, a crane with a man in charge of it; the man received directions from the firm or their servants as to the working of the crane, and the defendants had no control in the matter. It was held that though the man in charge of the crane remained the general servant of the defendant yet, as they had parted with the power of controlling him with regard to the matter on which he was engaged, they were not liable for his negligence while so employed.

The observations of Bowen, L.J., were also reproduced. These are as follows:

The law on the matter now before us seems to me to be perfectly clear....

We have only to consider in whose employment the man was at the time when the acts complain-ed of were done, in this sense, that by the employer is meant the person who has a right at the moment to control the doing of the act....

It is clear here that the defendants placed their man at the disposal of Jones & Co., and did not have any control over the work he was to do.

Their Lordships also referred to the case of--''Bourke v. The White Moss Colliery Co. Ltd.'' (1877) 36 LT 49 (C), where Cockburn, C.J., observed that

When one person lends his servant to another for a particular employment the servant, for anything done in that particular employment must be dealt with as the servant of the man to whom he is lent, although he remains the general servant of the person who lent him.

The principle laid down in these two cases obviously had the approval of their lordships. It may be observed, however, that on facts this case is clearly distinguishable from the case we have before us. Here there was a finding arrived at that a lighter, something mechanical, a mere chattel was completely transferred from the appellants to the respondents. The boys by no stretch of imagination could be regarded as having the control of the lighter on behalf of the owner.

They were merely to perform a manual function. The lighter from the moment of its delivery to the hirer came in their charge and therefore on facts it was a clear case of delivery and transfer of control. This case is distinguishable on facts but Mr. Lahiri tried to make use of the principle deducible from it. The second case he has relied on is--''Anamalai Timber Trust Ltd. v. Tripunithura Devaswom'' AIR 1954 KER 305 (D). In this case also a considerable body of the available case law has been considered. On facts even this case is very easily distinguishable though Mr. Lahiri put it forward is something which was on all fours with the present case. He pointed out that in this case also there was a hire of an elephant. It was for dragging timber in the forest and there was a Mahut in charge of it. The analogy or similarity if any ends here. The case is essentially distinguishable.

In this case there was an elaborate agreement in writing and this agreement was on the lines of an agreement between Governments when an officer is transferred by one Government to another and which results in a transfer of employment. The elephant was given on hire by the Government. When transferring the elephant on hire all those terms of the agreement which occur when an officer is sent on deputation were employed and from the terms themselves it was obvious that it was a case of a transfer of both, the elephant and the Mahut.

The control of the elephant and the Mahut stood transferred to the hirer. It may be stated that from the Privy Council decision referred to above and also on general principles it should be obvious that it is open to a man to transfer his chattel, e.g. an elephant with a Mahut to a hirer for a certain period. The parties may intend and decide that for the period of the hire the elephant and the Mahut both would be under the control of the hirer and he would be for that period an employer, though the owner, who is the general employer, may retain his status or position. Under such an arrangement he completely loses his immediate control.

In AIR 1954 KER 305 (D) the terms were such that there could be no manner of doubt that the control over the Mahut and the elephant was transferred for the period of the agreement of hire. The finding arrived at on facts was that the terms of the agreement of hire (Ex. E) would show that the defendant company had taken delivery of possession of the elephant and of the Mahuts from Devaswom on certain specified conditions with the undertaking to return the elephant and the Mahuts after a point of time.

The accountant of the defendant company had stated that the company had a right to take the elephant in any part of Cochin to get work done they had also the right to get the work. done as fixed by them, that work was got done by the elephant by giving orders to the Mahuts, that ropes were to be tied to the logs to be dragged, that such logs alone could be dragged by the elephant, that on days of work the mahuts were given extra allowance, that the mahuts were to apply to the company if they wanted leave and, that if the elephant was sent from the company for festivals the mahuts were to act under the direction of the company.

The company had full discretion and right and authority to use the elephant. The evidence showed somewhat conclusively that the plaintiffs did not retain any control over the objects of hire. This was the finding on facts. On this finding only one conclusion was possible. It was that the Mahuts were the servants of the defendant company at the relevant time and that they caused the injuries to the elephant in the course of their employment as servants of the company. The finding of fact arrived at on the basis of Ex. E is not possible to reach in this case. No similar terms have been proved here.

Mr. Ghose on behalf of the appellants has relied on two cases which may now be considered. His first case is reported in-- Niranjan Lal Ram Chandra Vs. Ram Swarup Bhagwan Singh and Another, In this case the plaintiff was the owner of the lorry. It was being used for unloading ballast in the Kheria aerodrome. On 21st July a lorry driven by Maqbul Hasan defendant 2 while engaged in the business of transporting ballast from a certain village to the same aerodrome struck the plaintiffs lorry and damaged it.

The plaintiff had to incur expenses in repairing the lorry and the lorry remained out of use for a period of about one month. Plaintiff''s case was that the lorry was owned by the defendants'' firm (appellants) which was arrayed as defendant 1 in the suit and that defendant 2, Maqbul Hasan was its servant working under its directions at the time of the incident.

He alleged further that defendant 2 was driving the motor lorry rashly and negligently and it was on account of the rash and negligent driving of defendant 2 that the plaintiff''s lorry was damaged. Defendant 1 pleaded that he was merely a hirer of the lorry and had no control on the action of defendant 2. (sic) Certain other persons who were subsequently impleaded.

The trial Court found that defendants 1 and 2 were both liable. In the second appeal by defendant 1 the point urged was that the defendant appellant was not liable to pay because defendant 2 was not under its control and that the lower Court had failed to determine this crucial point in the case. The appellate Court found that the lorry was registered in the name of defendants 3 and 4. They were the ostensible owners.

It was common ground that Mm lorry was being driven at the time of the accident for the business of defendant 1. Both the Courts were inclined to the conclusion that the owners of the lorry defendants 3 and 4 were mere dummies or figure-heads. They concurrently found that at the time of the accident, defendant 2 was in the service of defendant 1 and acting under his control.

On these findings the learned Judge after considering the leading cases on the point found that upon the findings recorded by the lower appellate Court he was satisfied that defendants 3 and 4 had withdrawn their control or authority from the driver, Maqbul Hasan, and that he was completely under the control of the appellant in driving the lorry, and that being so, the appellant was clearly liable along with the driver.

The decision rests on the concurrent findings of facts arrived at by the Courts below On facts even this decision is not therefore helpful. In this decision reference has been made to Salmond''s Law of Torts, Edn. 10 and two passages have been quoted from it. In these passages the author besides referring to the decision in (1893) 1 QB 629 (B) and--''Moore v. Palmer'' (1886) 2 TLR 781 (P) pointedly brought out what Lord Wright--(''Century Insurance Co. v. Northern Ireland Road Transport Board'' 1942 AC 509 (G)) thought of the expression ''control'' occurring in the earlier decisions. Agarwala, J. also referred to another recent and important decision reported in--''Dowd v. W.H. Boase and Co. Ltd.'' (1945) 1 All ER 605 (H).

In 1942 AC 509 (G) the legal position is elucidated. The case arose out of a contract between a petrolium company and a transport under taking. It was for the carriage and delivery of petrolium in its lorries by the Transport Undertaking. The Transport Undertaking agreed to keep the petrolium while in transit, insured against fire and spillage, and to dress its employees engaged in the delivery in such uniforms as the company might direct.

It also agreed that its employees engaged in the delivery would accept the orders of the company regarding such delivery, the payment of accounts and all matters incidental thereto, provided that this was not to be taken as implying that its employees were the employees of the company. It was held that the contract did not contemplate any transference of servants as contrasted with transference of service, and the driver at the time of the accident was acting as the servant of the Undertaking.

Viscount Simon L.C. began by referring to the case of (1893) 1 QB 629 (B) and agreed with the observations in that case that the test was

in whose employment the man was at the time when the acts complained of were done, in this sense, that by the employer is meant the person who has a right at the moment to control the doing of the act.

He also referred to the case of (1886) 2 TLB 781 at p. 782 (F) which emphasized that

the great test was this whether the servant was transferred, or only the use and benefit of his work.

Both the tests were apparently regarded as complementary and were applied to the facts of the case and the conclusion stated above was reached. Lord Wright on page 516 referring to (1893) 1 QB 629 (B) observed that

Bowen, L.J. completes his statement thus: ''There are two ways in which a contractor may employ his men and his machines. He may contract to do the work and the end being prescribed, the means of arriving at it may be left to him. Or he may contract in a different manner and not doing the work himself may place his servant and plant under the control of another--that is he may lend them and in that case he does not retain control over the work.

While the principle that the control over the employee is the determining factor remains, the test brought out in this case by Lord Wright from the observations of Bowen L. J. affords a better and ah easier approach to a difficult question. There are two possibilities. A contractor may lend his servants and his chattel. He may transfer the control over them to the hirer. He may merely agree to do some specified work through his servants.

There may be a transference of service in. such a case but not of the servant who remains under his own control and does the allotted work. The question in all cases is whether it is the transference of the servant or his service. There does not appear to be any conflict between the two tests. They are consistent and can be reconciled with each other. In Moore v. Palmer (P) also it was emphasized that the great test was whether the servant was transferred, or only the use and the benefit of his work.

It was found in--''M'' Cartan v. Belfast Harbour Commrs.� (1911) 2 Ir R 143 (I) that the use and the benefit of the Harbour Company''s crane and its driver were transferred. The driver of necessity had to obey the directions as to lowering and hoisting given by those conducting the operation, yet it was held that there was no transfer of employment. The mere fact that the driver has to obey the directions of the hirer while he is doing the work therefore is not conclusive on the point of transfer of employment itself. The situation has been summed up by Lord Herschell, L.C. in very lucid terms ( (1886) 2 TLR 781 at p. 782 (F)):

There was no express agreement with regard to the extent to which the master and mate should have control over them (sc the Stevedore''s servants). That control is only to be implied from the circumstances in which they were employed.

The relation of Stevedore to shipowner is a well-known relation, involving no doubt the right of the master of the vessel to control the order in which the cargo should be discharged and various other incidents of the discharge, but in no way putting the servants of the stevedore so completely under the control and at the disposition of the master as to make them the servants of the shipowner who neither pays them nor selects them nor could discharge them, nor stands in any other relation to them than this that they are the servants of a contractor employed on behalf of the ship to do a particular work.

Lord Herschell did take into consideration the element of control. This could be inferred from the circumstances of the case. But this according to him was not the sole consideration for determining who the employer at the relevant time was. Other relevant factors according to him were the liability to pay the salary, the power to select and appoint and the power to discharge or dismiss the servant or the employee in question.

Lord Wright referred to the observations of Lord Herschell with approval and added that "it is, I think, clear that the presumption is all against there being such a transfer" (viz. transfer of the servant or the control over him). In his view the presumption was against the transfer of employment. Where therefore a plain tiff comes into Court and pleads that there is a case of bailment, that the employment of the servant itself with chattel was temporarily transferred, the presumption is against such transfer. He has therefore to prove his assertion. The onus is entirely on him.

The second case relied on by Mr. Ghose is (1945) 1 All ER 605 (H). Two cases were disposed of by this judgment. This is the latest case to which reference has been made at the Bar. It was held in this case that

in each of the two cases, the regular employers failed to establish that the hirers had such control of the acts of the workman at the time of the accident as to become liable as employers for his negligence. Although the driver was acting under the directions of the hirers in that they could tell him where to go and what to carry, he was not under their directions in regard to the manner of driving in doing the negligent act he was exercising his own discretion as a driver--a discretion vested in him by his regular employers when he was sent out with the vehicle.

It was observed by Martin, L.J. who delivered the judgment of the Court that

it is clearly established that if the regular employers of a workman wish to contend that they were not his ''employers'' at the time when his negligence in performing his duties caused an accident, the burden is upon them to prove this. Prima facie, the persons who have engaged a man to serve them, who pay his wages and who have power to dismiss him if he misbehaves, are his employers during his hours of work, and it is by no means easy for them to prove that at the relevant time some other person had such complete control over the workman as to become his superior for the purposes of the maxim respondent superior.

The learned Judge shares the difficulty of Lord Sterndale in reconciling ''M'' Cartan''s case (I)'' with the case of ''Donovan (B)''. But he thought that ''Donovan''s case (B)'' had been referred to with approval in the ''Century Insurance case (G)'' and that on its peculiar facts the decision in ''Donovan''s case (B)'' was correct. He thought it unnecessary to examine all previous cases in detail, considering that this task had been performed in the case of--''Nicholas v. Sparks and Sons'' (1943) 61 TLR 311 (J).

His view was that the burden lies on the regular employer to show that the control over the servant was completely transferred to the hirer and he thought it would be difficult to discharge the onus in cases where the workman who caused the accident was driving a vehicle belonging to them of which he was in sole charge and which he alone was allowed to drive on the day of the accident.

He further observed that the answer to the question of employment at the relevant time must depend on the facts of each case. No case could be said to govern another unless the facts were similar in all respects. The examination of the later decisions reveals some shifting of emphasis from the mere element of temporary control to other circumstances such as the power to employ, the liability to pay the salary, the power to dismiss, which normally remain with the regular employer.

Facts in all the cases considered differ from the facts of the present case. The principles deducible from the decisions considered above may be stated as follows:

(1) That ultimately it is the control over the employee that determines the identity of the employer at the relevant time. By ''employer'' is meant a person who has the right at the relevant time to control the doing of the act. This control over the chattel and the attendant would determine whether there has been bailment as the result of a hire agreement.

Where a hirer takes over the complete control of the chattel with the attendant, he becomes the bailee. For determining control over the employee ah easy approach is provided by the test which requires a distinction to be made between the transfer of the servant or the attendant from the transference of service.

(2) Where a plaintiff pleads hire of the chattel and the attendant which involves transfer of such control over them that the hirer becomes their employer in law for the period of the hire, the burden is on him to prove this assertion. There is no presumption in favour of the transfer of the servant as distinguished from the transference of his service.

(3) Such control as results in the transfer of employment from the regular employer to the hirer may be inferred from the conditions of the agreement. But the mere obligation of the attendant to act according to the directions of the hirer when engaged in the work of the hire agreement is not conclusive. It is consistent with the regular employer retaining the employment with himself. There are other important considerations also which bear on the relationship and in the words of Morton L.J.

prima facie, the persons who have engaged a man to serve them, who pay his wages and who have power to dismiss him if he misbehaves, are his employers during his hours of work, and it is by no means easy for them to prove that at the relevant time some other person had such complete control over the workman as to become his superior for the purposes of the maxim ''respondeat superior�.

Applying these principles to the facts of the case it is not difficult to come to the conclusion that the plaintiff has not succeeded in substantiating the case of bailment put forward by him. All that has been proved is that the elephants were sent to the forest on certain daily wages. The Mahuts were employed by the plaintiffs. They alone could dismiss them. They also had to supply substitutes if for any reason the Mahuts could not remain in the forest.

The fact that they had to work under the direction of the defendants during the period of work is not inconsistent with the case set up by the defendants. The proved terms of hire in this case are consistent with the plea of the defendants that use of the Mahuts and the elephants or their services were lent as distinguished from the transfer of Mahuts and the elephants. If facts proved are consistent with the plea raised on behalf of defendant the plaintiff cannot claim to have succeeded in proving that it was a case of the transfer of his servants and the elephants and therefore the defendants became the bailees of both.

In order to prove this the possibility of the transference of service had to be excluded. In any case the circumstances should have shown a preponderance of probabilities in favour of the view that what was intended was that the elephants and the Mahuts would be transferred to the control of the defendants for the period of the contract. There can be no presumption, in favour of any such proposition. It had to be proved like any other fact alleged in the case and evidence on the point falls far short of the requisite standard.

In fact it appears that it was just a plain agreement of hire with no other terms except the wages of the elephants and their attendants though it must have been understood that the Mahuts and the elephants would work in conformity with the usual practice. The plaintiffs (sic) fully to realise the legal position at the time of instituting the suit and therefore they in their allegations included all the terms which if proved would have constituted bailment.

When coming to proof they failed signally. They could not substantiate the terms alleged. The taller the claim the more difficult its proof. The result is that though there was an agreement of hire between the plaintiffs and the defendants, it cannot be held on the evidence in the case that the defendants became the bailees of the elephants in this case. The elephants could remain under the control of the plaintiffs through their Mahuts.

The Mahuts admittedly had to look after them. One of the two Mahuts in the witness box admitted that they were responsible for looking after the health and feeding of the elephants and this is as it should be The Mahuts could also retain control on the elephants when off duty. They were acting for and on behalf of and in the interest of plaintiffs. They alone could watch plaintiff�s interest and see that elephants were not overstrained or used in a manner not in conformity with the usual practice or the understanding between the parties.

There is nothing in the evidence which would point to the conclusion that the plaintiffs intended that this control be transferred to defendants. Bailment therefore cannot be said to have been established as the result of any express agreement; nor is it possible to infer it from proved facts. In the absence of bailment plaintiffs cannot claim compensation for the loss of elephants from the defendants.

They also cannot claim any money spent by them on the search; nor could their claim for compensation for loss by reason of the absence of the elephants from work during the period of hire be entertained. It is not necessary in these circumstances to consider any other question relating to these items. If defendants are not the bailees, they would not be responsible for loss caused to plaintiffs by the temporary absence or total disappearance of any of the elephants.

A sum of Rs. 200/- claimed as balance of hire money was also disallowed and it has not been shown to us that the finding is wrong. The result of the foregoing discussion is that the plaintiffs suit must fail.

In view of the conclusion reached by us on the question of bailment there is no need to give any finding on the question of negligence. It is still less necessary to go into the details so far as this question is concerned. It may, however, be observed that if it had been necessary to go into that question, it would have been very difficult for us to find that defendants were really guilty of any negligence. The loss might easily have been due to causes beyond the control of the defendants.

A reference to Ex. 5 also points to this conclusion. Plaintiffs were informed by defendant 5 that the Mahuts had left and the work was suffering. The elephants at that time were there. The Mahuts had to be supplied by the plaintiffs. It was indicated towards the end of the letter that defendants'' men were to start on Friday next with boat and if Mahuts could be sent with them it would be very convenient.

Defendants thus were very anxious to obtain substitutes. But plaintiffs evidently did not send any substitutes. At the trial one of the plaintiffs deposed that they permitted the manager (defendant 5) to engage two Mahuts. They even went further and said that Mahuts were engaged but there is no independent evidence on the point that defendant 5 was authorised to appoint Mahuts or actually appointed them. There is evidence on the record that the defendants made reasonable efforts for finding out the missing elephants.

The plaintiffs were not very quick in joining, the search. They got the information and their men reached the forest when at least one of the three missing, elephants had been found. We are not unmindful of the fact that it would be for the defendants to show that if they are found to be bailees no negligence on their part resulted in any loss to the plaintiffs. Both the parties produced all evidence they had on the point and we discover no basis for the finding that any negligence on the part of the defendants was the cause of or contributed to the loss of the elephant. The Mahut who stayed in the forest after the departure of the two others has not been examined.

The elephants have to graze in the forest and if one man is controlling the three elephants, it is possible he may miss them and if no suitable arrangements for search exist, an elephant may be lost. Circumstances which emerge from the evidence do not incline us to hold that there was any negligence on the part of the defendants, assuming that they had some obligations or duties; in the matter of the safe custody of the elephants. The conclusion that the plaintiffs have not been able to substantiate their claim is thus reinforced.

The appeal is in the circumstances allowed and the cross objections are disallowed with the result that the suit of the plaintiff�s shall stand dismissed.

There still remains the question of costs. Both the parties have put forward very tall claims. They have been reckless and irresponsible in their allegations'' and when it came to proof, both sides suffered collapse. Apart from these allegations, a question of law was involved in the case and this was by no means easy. In these circumstances it would be just and fair that the parties should bear their own costs throughout and we order accordingly.

Sarjoo Prosab, C.J.

I agree that on the facts proved the plaintiffs have not succeeded in establishing a case of bailment. The facts constitute just a plain agreement of hire and no more. Even if a case of bailment is assumed it is difficult to hold on the materials as they clearly emerge from the record that the defendants had failed to take reasonable care of the elephants or that they were responsible for any negligence ensuing in the loss of the elephant Rajpati.

The letter Ex. 5, precludes any such assumption; and the fact that the defendants started a search of the elephants on their own initiative: and informed the plaintiffs of the matter, who themselves were rather slow to respond, shows that the defendants were not at all to blame for the loss and did all that they reasonably could do-in the circumstances. The appeal therefore must be allowed and the suit dismissed, but in the circumstances without costs.