N.R. Srinivasa Iyer Vs. New India
Assurance Co., Ltd. [1983] INSC 84 (22 July 1983)
DESAI, D.A.
DESAI, D.A.
REDDY, O. CHINNAPPA (J)
CITATION: 1983 AIR 899 1983 SCR (3) 479 1983
SCC (3) 458 1983 SCALE (2)44
ACT:
Contract Act-S. 148 Contract of insurance-When
custody of motor car damaged in accident is entrusted to repairer by insured in
accordance with terms of insurance policy does the insurer become bailee and
repairer `sub-bailee' of motor car?
HEADNOTE:
The appellant's motor car, insured with the respondent
(`insurer') suffered damage in an accident and was taken to and left in the
custody of a repairer. On receipt of intimation of the accident, the insurer
entered into correspondence with the repairer, accepted the estimate of repair
charges and advised the repairer to proceed with the repairs. The Motor car
was, however, destroyed in a fire which occurred hl the repairer's workshop.
The appellant filed a suit claiming from the insurer the value of the motor car
on the footing that the insurer was the bailee of the motor car while it was in
the custody of the repairer.
The trial court upheld the contention of the
appellant and decreed the suit but, in appeal, the High Court set aside the
decree and dismissed the suit on a ground not related to the contention based
on the contract of bailment. In Civil Appeal No, 142 of 1965 decided on October
31,1967 this Court allowed the appeal of the appellant and remitted the same to
the High Court requesting it to deal with the following questions: (i) whether
the insurer was a bailee of the motor car; (ii) Whether the insurer failed to
take as much care of the car as a person of ordinary prudence would in similar
circumstances; and (iii) The value of the destroyed car. 1 he High Court held
on the basis of the correspondence between the parties that the car was
entrusted to the repairer by the appellant's son on behalf of the appellant,
that this was done without reference to the insurer, that the insurer had only
agreed to pay the repair charges and that therefore the insurer was not a
bailee of the motor car.
Allowing the appeal,
HELD: 1. A bare perusal of some of the
conditions contained in the contract of insurance would unmistakably lead to
the conclusion that the insurer was a bailee of the motor car. The custody of
the repairer was that of a sub- bailee. The High Court went wrong in not making
any reference to the contract of insurance between the parties.
In a contract of insurance, there are mutual
rights and obligations both of the insurer and the insured. If the motor car is
damaged in an accident, a duty is cast on the insured not to leave the damaged
car unattended which of necessity would oblige the insured either to keep a
watchman or if the car is in a condition to be moved it ought to be 480 taken
to a repairer, and the insurer undertakes an obligation to reimburse the cost
of removal to the insured.
This would imply that from the scene of the
accident, it is the duty of the insurer to remove the car to the nearest
repairer but this duty is to be performed by the insured on behalf of the
insurer. Another important condition of the contract is that, once the car is
damaged in an accident, the insurer may, at its own option, either repair,
reinstate or replace the motor car. When the insurer has the option to replace
the motor car, it can take over the damaged car and the insured is bound to
submit to the same. If the insure, on the other hand, exercises the option of
repairing the car, it is entitled not merely to choose the repairer but also to
determine the charges for repairs to be settled between the insurer and the
repairer and the insured has hardly anything to do with it. [486A, 487 C-D, 488
C-D] Moris v. C. W. Martin & Sons, Ltd., [1965] 2 All E.R. 725; and
Gilchrist Watt and Sanderson Pty Ltd. v. York Products Ltd., [1970] 3 All E. R,
325; referred to.
In the instant case, when the appellant's son
soon after the accident took the damaged car to the nearest repairer, the car
virtually came into the custody of the insurer and the repairer took the
custody for and on behalf of the insurer. The obligation to get the car
repaired was that of the insurer. The insurer formally took the car into its
custody when it accepted the repairer to whom the custody was given and entered
into negotiations about the repair charges and finally agreed to pay the repair
charges to the repairer. [487 E] As a condition of contract of insurance the
insurer has to take custody of the damaged car, reserving the option to repair
or replace if. The insured has to remove the car to the nearest repairer on
behalf of the insurer and is entitled to be reimbursed the cost of removal.
Therefore, from the time of accident, under the contract of insurance, the
insurer would be the bailee. If the option to repair is exercised and the
repairer is approved and paid, the repairer becomes the sub-bailee. [490 E-G]
2. When the car was in the custody of the
sub-bailee, it was destroyed by fire that occurred in the repairer's workshop.
The sub-bailee was bound to take the same care as a man of ordinary prudence
would take in regard to his own goods of the same quality and value as was
expected of the bailee. When the custody is of the bailee or the sub-bailee,
the burden is on them to show how they handled the car. In the instant case the
High Court did not touch upon this aspect while reversing the decision of the
trial court.
There is no evidence on behalf of the insurer
as to what amount of care had been taken by the repairer. The appellant has led
some evidence in this behalf as to the careless manner in which the car was
kept in the workshop where inflammable material was kept. The burden being on
the bailee and the sub-bailee and the same having not been discharged, the
trial judge was justified in accepting the evidence of the appellant and in
according the finding that the bailee and sub-bailee had not taken such care of
the car as was expected of a prudent man in respect of his own goods of the
same quality and value. Therefore, the bailee is liable for the loss suffered
by the appellant, the bailer.
481
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2202 of 1969.
Appeal by Special leave from the Judgment and
order dated the 2nd January, 1969 of the Kerala High Court in A.S. No. 838 of
1958.
G.B. Pai, D.N. Misra, O.C. Mathur and Miss.
Meera Mathur for the Appellant.
N. Sudhakaran for Respondent No. 1.
MRK Pillai for the Respondent No. 2.
The Judgment of the Court was delivered by
DESAI, J. Plaintiff whose car was destroyed in fire way back in July 1953 and
claimed a paltry sum of Rs. 7,000 from the respondent (Insurance Company for
short) is knocking at the doors of Courts of Justice since last three decades
and mirage of justice is still eluding him, and in his chase presumably he must
have spent double the amount than prayed for in the plaint because this is the
second round when the matter has reached the apex court.
Plaintiff, who is the appellant was the owner
of Austin 16 H.P. Motor Car, which he had insured with the original' first
defendant Vanguard Fire and General Insurance Company Ltd. ('Insurer' for
short) in respect of accident, loss or damage. The period covered by the policy
of insurance Ext.
P-1 dated March 4, 1952 was from March 1,
1952 to February 28, 1953. This car suffered damage in an accident which occurred
on December 21, 1952. The car was taken to car repairing workshop of P.S.N.
Motors Ltd., Trichur and left there and an intimation of the accident was sent
to the Insurer requesting it to discharge its obligation under the policy of
insurance. The repairer to whom the car was handed over prepared an estimate of
the repair charges in the amount of Rs. 2010 and forwarded the same to the
Insurer.
After some protracted correspondence, the
Insurer accepted the estimate of repair charges in the amount of Rs. 1910 and
the Insurer by its letter dated Ext. P-13 dated March 25, 1953 wrote to the
plaintiff and the repairer as under:
We have pleasure to inform you that the
revised estimate of M/s P.S.N. Motors Ltd., Trichur has been 482 approved by
our head office, and they have been advised to proceed with the repairs and
send us their final bill together with the discharge voucher duly filled in and
signed by you, for making the payment.
Assuring you of our best services
always." Since the date of the accident the car was in the custody of the
repairer for the purpose of repairs. On July 10, 1953, a fire occurred in the
workshop of the repairer in which the Motor Car of the plaintiff was destroyed.
The plaintiff called upon the Insurer to indemnify him for the loss as per the
terms of the policy of insurance alleging that the Motor Car was in the
possession and custody of M/s P.S.N. Motors Ltd on behalf of the Insurer and
was being repaired at the sole responsibility of the Insurer under its
instruction and since the Insurer had entrusted the Motor Car for repairs to a
workshop in which several automobiles with inflammable materials like oil,
petrol, tyres etc. were Lying without ascertaining whether the workshop was
insured against fire and other risks, the Insurer was liable to make good the
loss. The plaintiff claimed the value of the Motor Car on the footing that the
respondent-company was a bailee of the Motor Car and had failed to take such
care thereof as a person of ordinary prudence would under similar circumstances
take of his property of the same quality and value as the Motor Car bailed.
This last submission alleging a contract of bailment is seriously disputed by
the respondent-insurance company.
The Insurer contested the claim, inter alia,
contending. that the suit is not maintainable in view Condition No. 7 of the
policy of insurance an aspect of the matter which is concluded against the
respondent-company and, therefore, it is not necessary to set out in extenso
the contention under this head. The contract of bailment was seriously disputed
and it was submitted that the car was handed over to the workshop by the
plaintiff's son and the insurance company had only agreed to re-imburse the
loss and the workshop owner was not the agent of the Insurer nor was the
insurance company a bailee; nor could it be said that the agent of the bailee
was in possession of the car.
The trial court held that the Motor Car was
entrusted to the repairer for and on behalf of the Insurer and the insurance
company 483 was liable for the loss of the Motor Car as it was in possession of
the agent of the insurance company. The suit was held to be maintainable,
despite condition No. 7 of the policy of insurance. Accordingly, the suit was
decreed with costs.
An appeal was preferred to the High Court of
Kerala at the insurance of the Insurer. The High Court held that condition No.
7 of the policy of insurance precluded the plaintiff from filing the suit
before obtaining the award and on the short ground allowed the appeal of the Insurer
and dismissed the suit.
The plaintiff preferred Civil Appeal No. 142
of 1965 by special leave to this Court. Shah, J. speaking for the Court in the
judgment rendered on October 31, 1967 held that the High Court was in error in
coming to the conclusion that condition No. 7 precluded the plaintiff from
filing the suit. This Court held that condition No. 7 of the policy of
insurance has no operation in the case since the difference between the Insured
and Insurer arose not out of the policy;
but out of the claim of the plaintiff that
the Motor Car was delivered to the respondent-company for repairs.
Accordingly, this Court reversed the decision
of the High Court and remitted the appeal to the High Court requesting the High
Court to deal with the following questions which arise in the appeal:
"1. Whether the respondent-Company was a
bailee of the motor car of the plaintiff as alleged by the plaintiff?
2. Whether the respondent-Company failed to
take as much care of the motor-car as a person of ordinary prudence would in
similar circumstances take of his own motor car of the same quality and value ?
and
3. the value of the motor car
destroyed." When the matter went back to the High Court, the appeal was
heard by a Division Bench of the Kerala High Court. The Bench hearing the
appeal had some doubt whether in view of the pleading the plaintiff can claim
any relief on the basis of a contract of bailment. After expressing this doubt,
the High Court proceeded to observe that in view of the scope of remand the
High Court has to decide the question whether or not the Insurer was a bailee
of the plaintiff ? 484 After referring to the correspondence, the High Court
reached the conclusion that the Motor Car was entrusted to M/s P.S.N. Motors
Ltd. by the plaintiff's son on behalf of the plaintiff for repairs, that it was
done without reference to the defendant, that all that the defendant agreed was
to pay to the plaintiff or to P.S.N. Motors Ltd., on his behalf, the amount
which was settled as the charges for carrying out all the repairs." In
this view of the matter, the High Court held that the Insurer was not a bailee
of the Motor Car of the plaintiff and the plaintiff's claim as founded on a
contract of bailment cannot succeed.
The High Court, accordingly, allowed the
appeal of the insurance company and dismissed the suit of the plaintiff
directing the parties to bear their respective costs. Hence this appeal by the
plaintiff by special leave.
By the time the appeal was filed in this
Court, the General Insurance Business (Nationalisation) Act, 1972 was enacted
and brought into operation. The Central Government in exercise of the powers
conferred by sub-sec. (1) of sec. 16 of Nationalisation Act framed the scheme
which was published in the Gazette of India Extraordinary Part II- Sec. 3 -
Sub-section (ii) . . . dated December 31, 1973. The First Schedule appended to
the scheme shows that Vanguard Insurance Company Limited has been merged with the
New India Assurance Company Ltd. It may be noticed that the name of the first
respondent is shown to be the Vanguard Fire & General Insurance Co. Ltd. It
is not made clear whether the Vanguard Insurance Co. Ltd. set out in the First
Schedule to the scheme is the same as the respondent in this appeal.
That question is kept open to be debated if
the obligation to pay the plaintiff under the policy of insurance is decreed in
favour of the plaintiff by us.
Since the High Court had to decide the appeal
within the scope of order of remand made by this Court, it is necessary to
confine attention only to the questions which this Court directed the High
Court to determine. We have already extracted the three questions framed by
this Court in its judgment rendered on October 31, 1967.
The first question is whether the
respondent-insurance Company was a bailee of the Motor Car of the plaintiff as
alleged by the plaintiff ? Section 148 of the Indian Contract Act defines a
contract of bailment as under :
485 "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 to whom they
are delivered is called the "bailee"." There is an explanation
appended to the section which provides that if a person already in possession
of the goods of another contracts to hold them as a bailee, he thereby becomes
the bailee, and the owner becomes the bailer of such goods, although they may
not have been delivered by way of bailment. Sec. 149 provides that the delivery
to the bailee may be made by doing anything which has the effect of putting the
goods in the possession of the intended bailee or of any person authorised to
hold them on his behalf. Sec.
150 prescribes bailer's duty to disclose to
the bailee faults in the goods bailed. Sec. 151 provides that in all cases of
bailment the bailee is bound to take as much care of the goods bailed to him as
a man of ordinary prudence would, under similar circumstances, take of his own
goods of the same bulk, quality and value as the goods bailed.
The High Court came to the conclusion that it
is clear from the correspondence between the parties ending with Ext. P-13 that
the car was entrusted to P.S.N. Motors Ltd.
Trichur by the plaintiff's son on behalf of
the plaintiff for the repairs and that it was done without reference to the
insurance Company and that all that the defendent- insurance Company agreed was
to pay to the plaintiff or to P.S.N Motors Ltd. on his behalf, the amount which
was settled as the charges for carrying out all the repairs.
Approaching the matter from this angle, the
High Court held that the Insurer was not a bailee of the Motor Car and the
plaintiff cannot succeed in his claim as founded on a contract of bailment.
This conclusion is not borne out by the record and is against the weight of
evidence.
The High Court did not make any reference to
the terms of the contract of insurance between the parties before rejecting the
plaintiff's case that the Insurer was the bailee and the repairer was the
sub-bailee who had custody of the Motor Car on the entrustment of the custody
for the avowed object of repair by the bailee to the sub-bailee. For us, it is
a bit surprising that the High Court should have rejected the plaintiff's case
out of hand without slightest 486 reference to the contract of insurance
evidenced by the policy Ext. P-1. A bare perusal of some of its conditions
would unmistakably lead to the conclusion that the Insurer was a bailee of the
Motor Car in question.
The first condition which is the usual
condition in such a contract is that the contract of insurance is a contract of
indemnity and the Insurer undertake to indemnify the Insurer against loss of or
damage to the Motor Car and/or its accessories whilst thereon by accidental
external means. The next important condition is that in the event of the Motor
Car being disabled by reason of loss or damage covered under the policy of
insurance, the Insurer will bear the reasonable cost of protection and removal
to the nearest repairers and of redelivery to the insured but not exceeding in
all Rs. 150 in respect of any one accident. One other condition worth noting
reads as under:
"The insured may authorise the repair of
the Motor Car necessitated by damage for which the Company may be liable under
this Policy provided that:
(a) the estimated cost of such repair does
not exceed Rs. 300 (b) the Company is furnished forthwith with a detailed
estimate of the cost and (c) the Insured shall give the Company every
assistance to see that such repair is necessary and the charge
reasonable." The next condition to which reference may be made is
condition No. 4 which reads as under:
"Notice shall be given in writing to the
company immediately upon the occurrence of any accident or loss or damage and
in the event of any claim and thereafter the Insured shall give all such
information and assistance as the Company shall require." A further
condition is that 'the Company may at its own option repair, reinstate or
replace the Motor Car or part thereof and/or its accessories or may pay in cash
the amount of the loss or damage 487 and the liability of the Company shall not
exceed the actual value....' There is the further condition which may be
noticed. 'In the event of any accident or breakdown the Motor Car shall not be
left unattended without proper precautions being taken to prevent further
damage or loss and if the Motor Car be driven before the necessary repairs are
effected any extension of the damage or any further damage to the Motor Car
shall be entirely at the Insured's own risk.' We are constrained to reproduce
all these very relevant conditions which have a tell tale effect on the question
whether the Insurer was the bailee of the Motor Car because the High Court
wholly ignored them.
In a contract of insurance, there are mutual
rights and obligations both of the Insurer and the Insured. If the Motor Car is
damaged in an accident, a duty is cast on the Insured not to leave the damaged
car unattended which of necessity would oblige the Insured either to keep a
watchman or if the car is in a condition to be moved it ought to be taken to a
repairer. From the scene of accident when the car is taken to the nearest
repairer, the Insurer undertakes an obligation to reimburse the cost of removal
to the Insured.
This would imply that from the scene of
accident, it is the duty of the Insurer to remove the car to the nearest
repairer but this duty is to be performed by the Insured on behalf of the
Insurer and the Insured is entitled to be reimbursed for the expenses incurred
by him. Therefore, it was obligatory upon the Insured to remove the car to the
nearest repairer. This obligation arose under the contract of insurance. The
High Court rejected the contention of the plaintiff that the Insurer was a
bailee on the short ground that the car was entrusted to the repairer by the
plaintiff's son on behalf of the plaintiff for repair and that it was done
without reference to the Insurer and that all that the defendant agreed was to
pay the plaintiff or to P.S.N. Motors Ltd. On his behalf the amount which was
settled as the charges for carrying out all the repairs.
When the plaintiff's son soon after the
accident took the damaged car to the nearest repairer, the plaintiff was
discharging an obligation under the contract of insurance, for and on behalf of
the Insured because he could have legitimately claimed the cost of removal not
exceeding Rs.
150 from the Insurer. This would imply that
the Insurer took charge of the damaged car from the scene of accident and got
it moved to the nearest repairer. The car virtually came into the custody of
the Insurer and the repairer took the custody for and on 488 behalf of the
Insurer. The material aspect has been wholly overlooked by the High Court.
Secondly, the High Court observed that the
Insurer merely agreed to pay to the plaintiff-Insurered or to the repairer on
his behalf the amount which was settled as the charges for carrying out all the
repairers. At this stage High Court overlooked another important condition of
the contract of insurance which has been extracted hereinabove.
The Insurer may at its own option either can
repair, reinstate or replace the Motor Car, once the car was damaged in
accident. The obligation to repair the damaged car arose under the contract of
insurance. The Insurer had an absolute discretion either to repair, reinstate
or replace the Motor Car. When the Insurer has the option to replace the Motor
Car, it can take over the damaged car and the Insured is bound to submit to the
same. If the Insurer on the other hand, exercised the option of repairing the
car, it is entitled not merely to choose the repairer but also to determine the
charges for repairs to be negotiated and settled between the Insurer and the
repairer and the Insured has hardly anything to do with it. When these three
conditions are read together and the evidence is appreciated the inescapable
outcome is that the plaintiff through his son sent the Motor Car soon after the
accident to the nearest repairer in discharge of an obligation under the
contract of insurance and that too for and on behalf of the Insurer. In this
state of unimpeachable evidence emanates from the binding contract between the
parties, the High Court was clearly in error in holding that the plaintiff's
son took the car to workshop on his own without reference to Insurer. The
Insurer decided to get the car repaired and not to reinstate or replace the car.
Having exercised this option, the Insurer entered into negotiations with the
repairer and between them by Ext. P-13 worked out the rights and obligations.
The obligation to pay repair charges arose out of contract of insurance. The
Insurer wanted the repairer to repair the car and recover the charges from the
Insurer. The custody of the repairer would be that of a sub- bailee because the
Insurer was the bailee as pointed out earlier from the time of accident. Since
the accident, the Insured dealt with vehicle strictly as provided under the
contract of insurance and that necessitated taking the car to the nearest
repairer for and on behalf of the Insurer.
The Insurer became the bailee and the
repairer may have been initially pointed out by the bailer but with whom the
Insurer entered negotiation arrived at a contract and agreed to get the car
repaired in discharge of an obligation under the contract of insurance.
Therefore, for this additional reason the custody of the repairer is that of a
sub-bailee.
A reference to some decisions in this context
would bear out the conclusion. In Morris v. C.W. Martin & Sons Ltd.(1)
plaintiff sent her mink stole to a furrier for cleaning. The furrier,
contracting as principal not agent, arranged with the defendants for them to
clean the plaintiff's fur on the current trade conditions, of which the furrier
knew. The defendants knew that the fur belonged to a customer of the furrier,
but did not know to whom it belonged. M, an employee of the defendants, was
given the task of cleaning the fur. While the fur was in M's custody, he stole
it. The plaintiff sued the defendants for damages.
The suit was dismissed. In an appeal by the
plaintiff, the Court of Appeal reversed the decision and decreed the
plaintiff's suit. Lord Denning quoted with approval the following passage from
Pollock and Wright on Possession:
"If the bailee of a thing sub-bails it
by authority .... and there is no direct privity of contract between the third
person and the owner it would seem that both the owner and the first bailee
have concurrently the rights of a bailer against the third person according to
the nature of the sub- bailment." It was accordingly held that if the
sub-bailment is for reward, the sub-bailee owes to the owner all the duties of
a bailee for reward, and the owner can sue the sub-bailee direct for loss of or
damages to the goods; and the sub- bailee is liable unless he can prove that
the loss or damage occurred without his fault or that by his servant.
In Gilchrist Watt & Sanderson Pty Ltd. v.
York Products Pty Ltd.(1); the Shipowners carried two cases of clocks,
belonging to the plaintiffs in their vessel from Hamburg to Sydeny, where the
defendants carried on the business of stevedores and ship's agents. The bill of
lading provided, inter alia,: "When the goods are discharged from the
vessel, they shall be at their own risk and expense; such discharge shall
constitute complete delivery and performance under this contract and the
shipowners shall be freed from any further responsibility". The defendants
unloaded the two cases from 490 the vessel. When the plaintiff sought to take
delivery of the two cases, one of them was missing and was not recovered. The
plaintiffs sued the defendants on the ground that they were sub-bailee and are
answerable to the plaintiffs to the same extent as the bailee. The Privy
Council affirming the decision in Morris's case held that the bailment to the
shipowners continued till the goods were delivered to the plaintiff, but in the
meantime there was a sub-bailment from the shipowners to the defendants. The
defendants as sub-bailee were given and took possession of the goods for the
purpose of looking after them and delivering them to the holders of the bill of
lading who were the plaintiffs, thereby the defendants took on this obligation
from the plaintiff to exercise due care for the safety of the goods, although
there was no contractual relations between the plaintiffs and the defendants.
For this proposition Morris's case was held to be the principal authority and
it was virtually followed.
It is not necessary to multiply the decisions
further.
Turning to the facts of this case as pointed
out earlier, the contract of insurance as evidenced by the insurance policy
clearly spelt-out a duty and an obligation to remove the damaged car covered by
the policy to the nearest repairer as soon as the accident occurred. This was
an obligation cast on the Insured to be carried out on behalf of the Insurer,
and this was to be done for the benefit of the Insurer because the Insurer had
the option to repair or to replace the car. In the background of these facts,
the handing over of the car by son of the plaintiff to the repairer would
constitute a delivery on behalf of the Insurer who would be the bailee and the repairer
would be the sub-bailee. This inference is further strengthened by the
correspondence that ensued between the Insurer and the repairer. The obligation
to get the car repaired was of the Insurer. It had a right to take the car into
its custody. It did formally take the car into the custody when it expected the
repairer to whom the custody was given as the one acceptable to them and
entered into negotiations about the repair charges and finally agreed to pay
the repair charges to the repairer. Unquestionably, the Insurer would be the
bailee and the repairer would be the sub bailee.
The second point which this Court directed
the High Court to decide was whether the respondent-company failed to take as
much care of the Motor Car as a person of ordinary prudence would 491 in
similar circumstances take of his own Motor Car of the same quality and value?
When the car was in the custody of the sub-bailee, it was destroyed by fire
that occurred in the repairer's workshop. The sub-bailee was bound to take the
same care as a man of ordinary prudence would take in regard to his own goods
of the same quality and value as was expected of the bailee. Now no evidence
has been led by the defendants to explain what amount of care the bailee or the
sub-bailee took in respect of the car. When the custody is of the bailee or the
sub-bailee, the burden is on them to show how they handled the car. This is
well-established and need no authority. In Morris's case, the question of
burden of proof was examined by the Court of Appeal and the law was stated as
under:
"Once a man has taken charge of goods as
a bailee for reward, it is his duty to take reasonable care to keep them safe;
and he cannot escape that duty by delegating it to his servant. If the goods
are lost or damaged, whilst they are in his possession, he is liable unless he
can show-and the burden is on him to show-that the loss or damage occurred
without any neglect or default or misconduct of himself or of any of the
servants to whom he delegated his duty." In the present case, the trial
Court held that the repairer the sub-bailee failed to take that much care as a
prudent man would take of his own thing in respect of the car. The High Court
has not touched this aspect while reversing the decision of the trial Court. There
is no evidence on behalf of the Insurer on the question as to what amount of
care has been taken by the repairer the sub- bailee. One R. Rajaram D.W. 1 was
examined on behalf of the Insurer, and there is not one word in his
examination-in- chief as to what degree of care was taken to keep the car in
safe custody by the sub-bailee. No one was examined on behalf of the
sub-bailee. The burden was on them to establish to the satisfaction of the
Court as to what degree of care was taken in respect of the damaged car.
Plaintiff has led some evidence in this behalf as to the careless manner in
which the car was kept in the workshop where inflammable material was kept.
Without doubt the burden being on the bailee and the sub-bailee and the same
having not been discharged, the learned trial Judge was perfectly justified in
accepting the evidence of the plaintiff and in recording the finding that
bailee and the 492 sub-bailee had not taken such care of the car as was
expected of the prudent man in respect of his own goods of the same quality and
value. Therefore, the bailee is liable for the loss suffered by the plaintiff
the bailer.
The last point which this Court directed the
High Court to determine was about the value of the destroyed car. The plaintiff
has given the value of the Motor Car at the time of its loss at Rs. 7,000, and
that is the measure of the loss suffered by the plaintiff on account of the
loss of the car. The trial Court had decreed plaintiff's suit to the extent of
Rs. 7,000. The finding is confirmed.
For the reasons herein mentioned, this appeal
must succeed and it is accordingly allowed. The Judgment and decree of the High
Court are set aside and the one passed by the trial Court is restored with
costs throughout.
H.L.C. Appeal allowed.
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