G.C. Mathur, J.
1. This is an appeal against the order of the District Judge, Saharanpur, acting as the Motor Accident Claims Tribunal, awarding a sum of Rupees 10,400/- as compensation to Sukhbir Singh, respondent No. 1, against the appellants.
2. Appellant No. 1 Ganga Sugar Corporation Limited, Deoband, owns a jeep No. USV 5511. On the night of March 5, 1968, this jeep was sent to Police Station, Deoband at the request of the Station Officer. It was being driven by Lal Singh driver, appellant No. 3. At about 9.30 p. m. the driver found that his way was blocked by a Barat party, some of the members of which were dancing on the road to the tune of the band which was accompanying the Barat. The driver got down from the jeep leaving the ignition keys in the jeep and went to the Police Station. While the driver had gone to the Police Station, someone drove the jeep and caused an accident whereby Sukhbir Singh's left hand was severed from the forearm. Sukhbir Singh was standing at that time watching the Barat near an electric pole. His left arm was crushed between the jeep and the electric pole. Sukhbir Singh was taken to the Hospital, where he remained from March 6, 1968 to April 15, 1968. On May 3, 1968, Sukhbir Singh lodged his claim before the Motor Accident claims Tribunal, Sharanpur (District Judge, Saharanpur), claiming a sum of Rs. 51,000/- as compensation. To his claim Sukhbir Singh impleaded four parties. The first party was the Ganga Sugar Corporation Limited, Deoband, the owner of the jeep. The second party was the New India Assurance Company Limited Delhi with which the jeep was insured. The third party was Sri S. N. Sharma, the Factory Manager of the Ganga Sugar Corporation Limited. According to the claimant, Sri S. N. Sharma was in the jeep at the time it was being driven to the Police Station and that it was he who drove the jeep after the driver left and caused the accident. The fourth party was Lal Singh, the driver of jeep. The Ganga Sugar Corporation Limited filed a written statement denying its liability for payment of any compensation to the claimant It also challenged the amount of compensation claimed. It, further, set up a case that Sri S. N. Sharma, the Factory Manager, was not in the jeep, that he was not driving the jeep when the accident occurred and that it was some member of the marriage party who unauthorisedly drove the jeep in the driver's absence and caused the accident. According to the Corporation's written statement the Station Officer had telephoned the Assistant Manager of the Corporation to send the jeep for some urgent Government work at 9.30 p. m. and accordingly the jeep was sent to the Police Station with driver Lal Singh and that there was no one else with him in the jeep. Driver Lal Singh filed a written statement substantially on the same lines as the written statement of the Corporation. Sri Sharma also filed a written statement on the same lines. He further added that he did not know driving at all, that he was not in the jeep on that night and that between 8 and 10 p.m. on the night of occurrence he was at the house of Sri G. D. Saluja, Controller of Accounts of the Ganga Sugar Corporation Limited, who had invited him for dinner. The insurance company also filed a written statement disclaiming all liability for the compensation on the ground that at the lime of the accident the jeep was being driven by an unauthorised person.
3. On the pleadings of the parties the Tribunal framed the following issues :--
1. Whether the respondent No. 3 Sri S. N. Sharma was driving the jeep at the time of the accident? If not, what is its effect?
2. Whether at the time of the accident the jeep was being driven by a miscreant?
3. To what amount of compensation, if any, is the claimant entitled
4. In support of his case the claimant examined himself as A. W. 1, Kunwar Sen as A. W. 2, Jai Prakash as A. W. 3 and Dr. B. G. Mathur as A. W. 4. The appellants also examined four witnesses, namely, Lal Singh driver (D. W. 1). Sri S. N. Sharma (D. W. 2), Bal Krishan (D. W. 3) and Sri Saluja (D. W. 4).
5. Upon a consideration of the evidence the Tribunal came to the conclusion that at the time of the accident Sri S. N. Sharma was driving the jeep. It then held that the claimant was entitled only to a sum of Rs. 10,400/- as compensation. The Tribunal further held that the insurance company was not liable, as at the time when the accident occurred the jeep was not being driven by a licenced driver. The Tribunal further held that Lal Singh driver was negligent in leaving the ignition key in the jeep, with the result that Sri S. N. Sharma was enabled to drive the jeep and to cause the accident and, therefore, Lal Singh driver was liable for the compensation. Sri S. N. Sharma, who was found to have caused the accident, was also held liable to pay the compensation. The Tribunal further held that the Corporation being the master of Lal Singh, drives of thejeep, on account of whose negligence the accident occurred when he was working in the course of employment was also liable to pay the compensation. The Tribunal accordingly ordered that the appellants shall pay Rupees 10,400/- by way of compensation to the claimant together with pending and future interest at 6 per cent, per annum and costs commensurate with the amount determined in favour of the complainant Against the order of the Tribunal the appellants have preferred this appeal. The claimant Sukhbir Singh has preferred cross-objections claiming that higher amount should have been awarded as compensation.
6. The first question which arises for consideration is whether Sri S. N. Sharma was driving the jeep at the time of the accident or whether it was some other person who was doing so. Three witnesses were examined by the claimant to support his case that it was Sri S. N. Sharma, who was driving the jeep at the time of the accident. These witnesses are the claimant Sukhbir Singh , (A. W. 1), Kunwar Sen (A. W. 2) and Jai Prakash (A. W. 3). According to Sukhbir Singh he was watching the Barat on the night of the occurrence. He saw that the Baratis did not give way to the jeep and the driver got down and went towards the Police Station, He further states that Sri Sharma was sitting in the jeep and after a short time he started driving the jeep. According to him the jeep first struck two other persons and then it hit him. He was then standing by the side of an electric pole. His left arm was caught between the jeep and the electric pole and the hand was chopped off. According to him the jeep was going at a fast speed. It is true that Sukhbir Singh bad worked in the Ganga Sugar Corporation and knew Sri Sharma well It bas been suggested to him that he was dismissed from the Ganga Sugar Corporation on the report of Sri Sharma and it was for this reason that he was implicating Sri Sharma in this accident. Reading his entire statement I feel considerable doubt as to the correctness of the version given by Sukhbir Singh. In the first place, when the Barat was still there it is not possible to accept the statement of this witness that the jeep was being driven at a fast speed. In the second place this witness has gone to the length of saying that not only Mr. Sharma but Sri Saluja was also in the jeep. This statement appears to have been made to meet the version of Sri Sharma that on the night of occurrence he was having dinner with Sri Saluja. In the third place, if this witness had seen the jeep striking two other persons he would naturally have moved away and saved himself. It appears to me that this witness was engrossed in watching the dance of the Baratis and he did not see jeep coming towards him. According to him as soon the jeep struck him he fell down unconscious. There was no opportunity for him to see as to who was driving the jeep particularly, when the lights of the jeep must have been put on.
7. Jai Prakash (A. W. 3) was also injured by the jeep. He has also stated that at the time of the accident Sri Sharma was driving the jeep. According to him the jeep first struck him and then struck Sukhbir Singh. According to him on being struck by the jeep he fell down in the drain and then became unconscious. Admittedly, he did not know Shri Sharma from before. He says that he was later told by people in the Bazar that Sri Sharma was driving the jeep. This witness could not have had any opportunity of seeing who was driving the jeep, as on being struck by the jeep he fell down in the drain and became unconscious.
8. The third witness Kunwar Sen had his shop near the place where the accident took place. According to him he was busy with his work at the shop when the accident occurred. His attention was drawn that side and then he saw Sri Sharma getting down from the front seat of the jeep.
9. Against this evidence the appellants produced Sri S. N. Sharma (D. W. 2), Bal Kishan (D. W. 3) and Sri G. D. Saluja (D. W. 4). Sri S. N. Sharma was the Factory Manager of the Ganga Sugar Corporation. He has stated that he did not know driving and did not possess a driving licence. He has denied that he was in the jeep on the night of occurrence when it was being taken to the Police Station. He has set up a case that on the night of occurrence he was having dinner with Sri G. D. Saluja, who was the Controller of factory accounts in the Ganga Sugar Corporation. The Statement of Sri S. N. Sharma is corroborated by the statement of Sri G. D. Saluja. Bal Kishan (D. W. 3) also has his shop in the Bazar near the place of the accident. He has stated that after Lal Singh driver went away to the Police Station one of the Baraties got into the jeep, started it and caused the accident, He knew Sri Sharma from before and stated that Sri Sharma was not driving the jeep. Lal Singh driver (D. W. 1) has also said that Shri Sharma was not in the jeep. Apart from this evidence, there are two circumstances which indicate that the case set up by the claimant that Sri Sharma was driving the jeep at the time of the accident is not correct The first is that there could be no reason whatever for Sri Sharma to be in the jeep at 9.30 in the night when the jeep was being taken to the Police Station for some Government work. If the jeep was going for some work of the Ganga Sugar Corporation, then the presence of Sri Sharma in the jeep would be probable, but when the jeep was being taken not for any work of the Sugar Corporation but for some Government work the presence of Sri Sharma in the jeep was highly improbable. The second circumstance is that when the Barat party had not allowed the driver to take the jeep through, it was not likely to permit Sri Sharma to take it through and, therefore, it was not probable that Sri Sharma should start the jeep and try to take it to the Police Station. There is also nothing onthe record to show that the assertion of Sri Sharma that be did not know driving and did not possess a driving licence is not true. Considering the evidence act circumstances as a whole I have come to the conclusion that it has not been established that Sri Sharma was driving the jeep at the time when the accident occurred. It is likely that some member of the Barat party got into the jeep and drove it causing the accident.
10. The next question which requires consideration is whether Lal Singh driver was guilty of any negligence and was liable for payment of compensation to Sukhbir Singh. Lal Singh has admitted that he left the ignition keys of the jeep when he left the jeep on the road and went to the Police Station. He has pleaded that he was beaten and dragged out of the jeep by the Baraties who were drunk and that he had no opportunity of taking out the keys. In other words he has pleaded that it was not on account of any negligence of his that he left the keys in the jeep, but that it was due to the action of the Baraties in forcibly dragging him out of the jeep that the keys were left in the jeep. In support of his version Lal Singh has examined himself and Bal Kishan (D. W. 3). Lal Singh has stated that he pleaded with the Baraties to allow him to take the jeep to the Police Station, but they were drunk and dragged him from the jeep and started beating him. He then some how got himself released and ran to the Thana. He went to the length of saying that he was beaten so mercilessly that he fell unconscious on the ground. He then states that as soon as he regained consciousness he crawled out and then ran to the Thana. According to him he got his injuries examined by Dr. Mathur, Additional Civil Surgeon, but he has neither produced the injury report nor Dr. Mathur to prove his injuries. It is difficult to accept his statement that for no rhyme or reason the Baraties dragged him down from the jeep and beat him mercilessly with the result that he was unable even to take out the keys from the jeep. This part of his statement does not inspire confidence. Bal Kishan (D. W. 3) corroborated the statement of Lal Singh that there was some grappling between the Baraties and Lal Singh and that the Baraties took him down from the jeep and that Lal Singh got himself released and ran away to the Thana, He, however, did not state that the Baraties mercilessly beat Lal Singh. In cross-examination he stated that he was busy with the work at his shop and he did not even see the dancing and singing of the Baraties. Having considered the evidence of these two witnesses, I am unable to accept Lal Singh's version that he was forcibly taken down from the jeep and was prevented from taking out the keys. It appears to me that Lal Singh negligently left the keys -in the jeep.
11. It was then urged by the learned Counsel for the appellants that the negligence of Lal Singh in leaving the keys in the jeep itself was not the cause of the accident, thatthe real cause of the accident was the driving of the jeep by a third person, -- and, therefore, neither the driver nor the Ganga Sugar Corporation is liable for the injuries caused to Sukhbir Singh.
12. In Engelhart v. Farrant and Co., (1897) 1 QB 240, it was laid down by the Court of Appeal that a master is liable has negligence of his servant whereby opportunity was given for a third person to commit a wrongful or negligent act immediately producing the damage complained of. The negligence of the servant must be the effective cause of the damage. The servant's carelessness in not anticipating what might not unreasonably happen can be the real and effective cause of the mischief. In this case the defendant employed a man to drive his cart with instructions not to leave it, and a lad, who had nothing to do with the driving, to go in the cart and deliver parcels to the customer of the defendant. The driver left the cart and while he was absent, the lad drove it and caused a collision with the plaintiffs carriage. It was held that the negligence of the driver in so leaving that cart was the effective cause of the damage and the defendant was liable.
13. In Latham v. R. Johnson and Nephew Ltd., (1913) 1 KB 398 Hamilton, J. observed as follows:
'........... a person who, in neglect ofordinary care, places or leaves his property in a condition which may be dangerous to another may be answerable for the resulting injury, even though but for the intervening act of a third person or the plaintiff himself that injury would not have occurred. Children acting in the wantonness of infancy and adults acting on the impulse of personal peril may be and often are only links in a chain of causation extending from such initial negligence to the subsequent injury. No doubt such intervener is a cause sine qua non, but unless the intervention is a fresh, independent cause, the persons guilty of the original negligence will still be the effective cause, if he ought reasonably to have anticipated such intervention and to have foreseen that if they occurred the result would be that his negligence would lead to mischief.'
In Ruoff v. Long and Co., (1916) 1 KB 148 it was laid down that:--
'A person lawfully leaving his property unattended in a highway must take reasonable means to prevent such mischief as he ought to contemplate as likely to arise from his user of the highway. He is not liable for damage caused by his property through such interference of third person as he is not bound to anticipate.'
In this case the defendants' servants momentarily left stationary but unattended in a highway a steam motor lorry. In order to start the lorry, it was necessary to withdraw a hand-pin from the gear lever and to mow that and two other levers. Two soldiers seeing the lorry mounted it. One tried but failedto set it in motion, but the other succeeded in starting it backwards so that it ran into the plaintiff's shop front and caused damage. It was held that the defendants' servants were not guilty of any negligence in leaving the lorry unattended.
14. Avory, J. observed :--
'To determine whether this negligence (if any) was an effective or proximate cause of damage the question to be answered is this: Admitting that the accident would not have occurred but for the intervention of a third person, was such an intervention a thing which the defendants as reasonable men ought to have anticipated? If it was, then of course it is no answer to say that it was not their original negligence which caused the accident; the intervention is the link in chain of causation and they are responsible.'
Lush, J. observed :--
'We need not go so far as to hold that a person lawfully leaving a vehicle standing unattended in a highway can in no circumstances be held responsible for damage through the intervening act of a third party. The circumstances might be such that he ought to recognise that he was offering a temptation or invitation to another to set the vehicle in motion and that danger might result to third persons. The chain of causality may be complete although a link in the chain is the intervening act of a third person. But the act which causes the mischief must be one which he would properly anticipate.'
15. The law relating to the liability of drivers and of their masters in cases of drivers leaving vehicles on the highway appears to be that:--
(1) it is not correct that in every case where the damage is caused by the intervention of a third party the driver and the master are not liable;
(2) the driver and consequently the master in such cases is liable if the driver was guilty of initial negligence and if, as a reasonable man, he could have anticipated the intervention of a third party; and
(3) the driver and consequently the master will not be responsible if the damage is caused by a fresh independent cause which, in the circumstances, the driver, as a reasonable man, could not have anticipated.
Applying these principles to the present case, it is clear that Lal Singh driver was guilty of negligence in leaving the keys in the jeep and he should have reasonably anticipated that some one would get into the jeep and try to drive it. In fact, Lal Singh has admitted in his statement that he knew that to leave the keys in the switch of a motor vehicle, which was left at a place where there was a crowd, was dangerous. He further admitted that where there were drunken people it would be dangerous to leave a motor vehicle with the keys in the switch. In this case it is obvious that Lal Singh driver, as a reasonable man, could have anticipated that some one from amongst the Baraties or fromamongst the people using the road may get into the jeep and drive it. That being so, the negligence of Lal Singh driver was the effective and proximate cause of the accident. He was liable for the damages for the injuries caused to Sukhbir Singh. Since the driver was acting in the course of his employment, his master the Ganga Sugar Corporation Limited was also liable for the same.
16. The last point urged by the learned counsel for the appellants was that the Ganga Sugar Corporation Limited had offered to give suitable employment to Sukhbir Singh which he refused to accept and that on account of this refusal he was disentitled to any compensation. The Tribunal has held that the offer of employment was not sincere but was made to circumvent the claim. The offer of employment was made at the fag-end of the argument and the offer was only to employ Sukhbir Singh on the temporary job of Chaukidar. I agree with the Tribunal that the offer was not a bona fide offer and the refusal of the offer did not disentitle Sukhbir Singh from claiming compensation.
17. Having disposed of all the questions arising in the appeal I now come to the cross-objection. Sukhbir Singh claimed that his income before the accident was Rs. 275/-per month. He admitted in his cross-examination that he had worked as a mason in the Ganga Sugar Corporation in 1966 at a monthly salary of Rs. 139/-. Taking into account the rise in wages between 1966 and 1968 when the occurrence took place the Tribunal held that the average monthly income of Sukhbir Singh was Rs. 150/-. It is on this basis that the Tribunal has calculated the compensation payable to Sukhbir Singh. In support of his cross-objection the learned Counsel for Sukhbir Singh has contended that the Tribunal should have held That Sukhbir Singh's average monthly income was Rs. 155/-, as Sri S. N. Sharma the factory Manager had admitted in his cross-examination that at that time the Rajgirs were working in the factory of Rs. 155/- per month. This statement was made in June 1969, more than a year after the accident. If in June 1969 Rs. 155/- per month was the wage or pay of a Rajgir, then the Tribunal was justified in holding that Sukhbir Singh's average monthly income in March 1968 was Rs. 150/-. There was, thus, no error in fixing the average monthly income of the claimant and determining the amount of compensation. The cross-objection is without force.
18. The appeal is, accordingly, dismissed with costs with this modification that appellant No. 2 Sri S. N. Sharma is not personally liable for the payment of the amount of compensation. The cross-objection is dismissed but without costs.