JUDGMENT McNair, J. - On 1st February 1941, the present appellant Dayaram Poddar had a marriage ceremony at his house at 5, Tarachand Dutt Street in the north of Calcutta. On the same night the son of the plaintiff-respondent and a friend went to the Chhaya cinema. At the conclusion of the performance they were coming back to Roy Street in a small standard 10 horse power car with a sunshine roof. One of the cars belonging to the appellant and containing guests returning from the marriage feast was proceeding down Theatre Road from west to east. The plaintiff's car was proceeding along Lower Circular Road, and where Theatre Road and Lower Circular Road cross one another, the two cars collided. The standard car was damaged and was overturned, and the owner brought an action against the appellant Mr. Dayaram Poddar and the driver of his car, Baramdeo Prosad Singh. That action was tried by Ameer Ali J., who gave the plaintiff a decree, assessing the damages at Rs. 1018, and granted costs to the plaintiff as between attorney and client on the ground that having regard to the amount of damages which the learned Judge had been able to award, the position would have been of little practical value to the plaintiff had he had to pay his own attorney and client costs. There was also a certificate that the case was fit for two counsel. From that judgment and decree the defendant Dayaram Poddar has appealed to this Court. 2. The accident occurred at about half past twelve on the morning of 2nd February. The appellant's car involved in the accident was a Chevrolet car, and it appears that he had six cars which were being used on the evening of 1st February for carrying guests to and from the marriage festivities. The occupants of the appellant's car lived at the Narkeldanga. Mill which is almost due east of the appellant's house at Tarachand Dutt Street. They came by bus to the wedding, but owing to the late hour at which they were departing, they wished to make use of one of the cars which had been placed at the service of the wedding guests. The driver, who had only been in the appellant's service for about a month, was not sure whether he should take them, but eventually he was prevailed upon to do so. The driver, who had only been in the appellant's service for about a month, was not sure whether he should take them, but eventually he was prevailed upon to do so. They started out from Tarachand Dutt Street apparently with the idea of going straight home to Narkeldanga. Instead, they found it was a moonlight night and they decided to go to pleasanter places, and they drove down to the south of Calcutta as far as the Victoria Memorial Hall. There they turned east and proceeded down Theatre Road intending to go on to the Lakes. Their intention was foiled by reason of the collision which took place at the crossing of Theatre Road with Lower Circular Road. 3. The plaintiff's case is that the defendant's car was going at excessive speed. Mr. Victor Kaul and Mr. Rozdon both say that their car had partially crossed the junction of the two roads when they saw the defendant's car coming down Theatre Road and about ten yards away. They were under the impression that they would be able to cross satisfactorily, but the defendant's car collided with the rear of the plaintiff's car, with the result that the plaintiff's car was overturned, and there is evidence that the overturned car was considerably damaged. The two occupants, Mr. Kaul and Mr. Rozdon climbed out through the sunshine roof. The plaintiff's car was proceeding along the main road and had the right of way. Mr. Victor Kaul has given evidence of the accident. Only one of the occupants of the defendant's car, namely, Kesri Chand has been called and he has been disbelieved by the learned trial Judge. On reading and considering his evidence, we consider that the learned trial Judge was amply justified in refusing to accept it. Kesri Chand was seated in the middle of the back seat of a closed Chevrolet car, and as the learned Judge points out, he could not have seen much of what was taking place. The learned Judge is even doubtful whether he was in the car at all. On that we express no opinion. The learned Judge has found that the accident was due to the negligence of the driver of the defendant's car and after considering the evidence which has been carefully placed before us by learned counsel, we are satisfied as to the correctness of that finding. 4. On that we express no opinion. The learned Judge has found that the accident was due to the negligence of the driver of the defendant's car and after considering the evidence which has been carefully placed before us by learned counsel, we are satisfied as to the correctness of that finding. 4. The question arises then as to the liability of the defendant for the act of the driver who was admittedly in his service. It may be stated that the driver filed a written statement but has not given evidence. It is also in evidence that the driver was dismissed shortly after the accident There is evidence that the defendant's car which was involved in the accident, and the other cars which he placed at the service of his guests, were used not only for female guests, as has been suggested, but for other guests. In fact Kasturchand Jain, the Munib Gomasta, himself walked to the ceremony and returned home in one of these cars. Kasturchand Jain has stated in evidence that he was in control of these cars and that he left at about 11 o'clock and instructed the driver to put the car away. Kesri Chand, the alleged occupant of the car, says that he induced the driver by the promise of a reward to take him and three others home. They had come by bus but it was late and Kesri Chand says that they considered they would go home in greater comfort in one of their master's cars. 5. The fact that the driver had authority to drive guests raises a presumption that he had authority to drive these persons home. Kasturchand says that he would probably have given permission, if asked. Neither the defendant himself who owned the car nor his driver has given evidence. It has been suggested that once these employees had entered the car, the driver was under their control and no longer under the control of the defendant. That is a contention which I am unable to accept. It appears to me that the driver had authority to take these persons home. The next question is whether by going in the opposite direction to the Narkeldanga Mill the driver was acting outside the scope of his authority. That is a contention which I am unable to accept. It appears to me that the driver had authority to take these persons home. The next question is whether by going in the opposite direction to the Narkeldanga Mill the driver was acting outside the scope of his authority. Again, it appears to me, that the driver was acting within the authority, in that, although there was admittedly deviation towards some of the beauty spots of the town, the journey was made for the purpose of taking his master's employees back to the Mill. In (1853) 13 C. B. 237 Mitchell v. Crassweller (1853) 13 C. B. 237 : 22 L. J. C. P. 100 : 1 W. R. 153 a carman having finished the business of the day had returned to the defendant's shop and was going to the stables to put up the horse and cart, but, instead of doing that, he drove a fellow workman to Euston, and on his way back ran over and injured the plaintiff and his wife. The question was discussed whether the carman when he started on the journey to Euston instead of going to the stables was making a new journey wholly unconnected with his master's business and in the words of Baron Parke, "on a frolic of his own." Jervis C. J. said at page 246: I think, at all events, if the master is liable where the servant has deviated, it must be where the deviation occurs in a journey on which the servant has originally started on his master's business; in other words, he most be in the employ of his master at the time of committing the grievance. Maule, J, delivering judgment in the same case says: At the time of the accident, he was not going a roundabout way to the stable, or, as one of the cases expresses it, making a detour.... The master is liable even though the servant, in the performance of his duty, is guilty of a deviation or & failure to perform it in the strictest and most convenient manner. But where a servant, instead of doing that which he is employed to do, does something which he is not employed to do at all, the master cannot be said to do it by his servant, and therefore is not responsible for the negligence of the servant in doing it. But where a servant, instead of doing that which he is employed to do, does something which he is not employed to do at all, the master cannot be said to do it by his servant, and therefore is not responsible for the negligence of the servant in doing it. And Cresswell J. has said: No doubt, if a servant in executing the orders, express or implied, of his master, does it in a negligent, improper, and roundabout manner, the master may be liable. In (1869) 4 Q. B. 476 Storey v. Ashton (1869) 4 Q. B. 476 : 38 L. J. Q. B. 223 : 17 W. B. 727 Cockburn C. J. in the course of his judgment was of opinion that the judgments of Maule and Cresswell JJ. in (1853) 13 C. B. 237 Mitchell v. Crassweller (1853) 13 C. B. 237 : 22 L. J. C. P. 100 : 1 W. R. 153 expressed the true view of the law. He goes on to say: I am very far from saying, if the servant when going on his master's business took a somewhat longer road, that owing to this deviation he would cease to be in the employment of the master, so as to divest the latter of all liability; in such cases, it is a question of degree as to how far the deviation could be considered a separate journey." It is apparent from these decisions that the question of deviation is in every instance a question of degree. In the present case the driver of the defendant's car was in fact driving some of the employees back to their residence but in doing so be took a more attractive but very much longer route than was necessary. He was, however, in my opinion still acting under the authority of his master and carrying out his duty of driving the wedding guests home. 6. The next question which we have to consider is the damages. The learned Judge has awarded damages for Rs. 1018. That figure is no doubt taken from the sum claimed in the plaint. The particulars are item (1), costs of repairs; item (2), costs of replacement of tools lost and re-supply of engine oil and petrol "flown" out due to the collision; (3) costs of removal of the damaged car; (4) taxi hire and other conveyance expenses of the family at Rs. The particulars are item (1), costs of repairs; item (2), costs of replacement of tools lost and re-supply of engine oil and petrol "flown" out due to the collision; (3) costs of removal of the damaged car; (4) taxi hire and other conveyance expenses of the family at Rs. 100 per month while the car was out of use, and (5) Police Court expenses. Item (5) I have no doubt is not, in any view, damages. Apparently the driver was prosecuted in the Police Court; he pleaded guilty and was convicted. How the plaintiff can claim damages for Police Court expenses passes my comprehension. Undoubtedly he would be entitled to damages for repairs to the car occasioned by the accident. Unfortunately the evidence with regard to the repairs that were effected is somewhat unsatisfactory. The accident took place early in the morning of 2nd February. The car was taken from the place where the accident occurred to the house of a friend in Theatre Road. It was kept there until 9th March when it was taken by the French Motor Car Co. under the instructions of the defendant for repairs. The French Motor Car Company gave their estimate on 8th March and the car was returned on 1st April. The evidence is that the car remained in Theatre Road for over a month pending police enquiry. It was not in charge of the police, it was left entirely in charge of the occupiers of the house. One reason apparently was because the plaintiff thought that claim would be settled. They also thought the police might like to see the car and so they did not touch it. Apparently they did not realise that unless the car was examined as soon as possible after the accident it would be difficult to satisfy the Court or the defendant as to the extent of the damage to the car. The car was examined at the French Motor Car Company's workshop by the Works Manager, but he has not given evidence. Instead, a clerk, Nripendranath Chowdhury, has stated that he made out an estimate while the car was examined by the Works Manager. Chowdhury himself did not inspect the car, but there is a schedule of charges for repairs, and according as the Works Manager spoke of the damage or the repairs that were necessary, Chowdhury wrote down the items in the estimate. Chowdhury himself did not inspect the car, but there is a schedule of charges for repairs, and according as the Works Manager spoke of the damage or the repairs that were necessary, Chowdhury wrote down the items in the estimate. Chowdhury says that all the items of repairs mentioned in the estimate were due to a collision, but it is clear from his evidence that he assumes that any damage that is apparent was due to this particular accident. The fact that the car was not examined for over a month is again important because it is stated that certain tools and the speedometer and other parts were missing, and there is nothing to show that these were lost as a result of the accident When the car was delivered back on 1st April, the French Motor Car Co., made out a bill for repairs amounting to Rs. 350. That bill was in fact two cash memos and no details are shown, but it is stated that that amount was paid to the French Motor Car Co. The original estimate by the French Motor Car Co. was for Rs. 655, and it is suggested that other repairs were necessary due to damage in the accident. The plaintiff has stated that the repairs were being done by instalments and he seeks to recover Rs. 100 which was paid to the Associated Auto Works for work which they did on the car some six months later. That work included supplying a new set of piston rings, valves, cylinder headgasket, engine oil and petrol, and oiling and greasing and overhauling the engine. It is difficult to understand how these charges can be attributed to damage done in the collision, particularly since the car had been, returned on 1st April to the owner in good running order. 7. It appears to me that the plaintiff should recover the sum of Rs. 350, which he paid to the French Motor Car Co., for repairs to the car after the collision and that he should have compensation for the loss of the car during the time when it was being repaired. He has assessed that at RS. 100 a month. The car was with the French Motor Car Co. for about three weeks and I consider that he should be allowed Rs. 75 for that period, which makes a total of Rs. 425. 8. He has assessed that at RS. 100 a month. The car was with the French Motor Car Co. for about three weeks and I consider that he should be allowed Rs. 75 for that period, which makes a total of Rs. 425. 8. The learned Judge, as I have already stated, has given the plaintiff costs as between attorney and client. It is argued that the plaintiff should only have recovered costs on the Small Cause Court scale. The plaintiff had in his plaint claimed Rs. 1,018, which has been allowed by the learned Judge, and also Rs. 5000 for nervous and mental shock. The plaintiff was not in the car at the time of the accident, but apparently the nervous and mental shock was occasioned by hearing that there had been an accident. Whether it was due to affection for his son, who was in the car, or for the car itself, which he says was his "life" has not been made clear. But that sum has been entirely disallowed by the trial Judge. It is clear, therefore, that there was an inflated claim which it appears to me the plaintiff could not possibly have substantiated. The learned Judge in awarding costs as between attorney and client has stated that he does so on the principle adopted by this Court in cases under the Fatal Accidents Act where general damages are assessed, and in the case reported in 52 Cal. 602 Nani Bala Sen v. Auckland Jute Company ('25) 12 A. I. R. 1925 Cal. 893 : 52 Cal. 602 : 89 I. C. 679 at p. 614 which the learned Judge follows, Page J., when awarding Rs. 18,000 damages has stated that the person to whom the damages were awarded should have his costs as between attorney and client so that there should be no diminution of the actual quantum of the damages which were assessed. 9. The learned Judge has also said that he might call in aid of S. 35A, Civil P. C. Dealing first with the principle which has been adopted by Ameer Ali J., it is difficult to see how the principle which has been applied to cases under the Fatal Accidents Act in assessing general damages would be applicable to a case like this where specific damage has been alleged and is sought to be recovered. With regard to the principle underlying S. 35A, Civil P. C., this appears to be a provision to enable compensatory costs to be granted in respect of false or vexatious claims or defences. The learned Judge has commented on the nature of the evidence which has been called for the defence. But it must be remembered that the defendant was not himself present at the time of the accident and that in his defence he is merely putting forward the case of which he has received information. That does not appear to me to be vexatious. Furthermore, I have already drawn attention to the claim of Rs. 5000 which has been disallowed and on which no cross appeal has been taken, and it appears to me that claim was a vexatious and inflated claim which had no justification whatsoever, and may very well have been inserted in order to justify suing in the High Court rather than in the Court of Small Causes. In these Circumstances it does not appear to me to be equitable to penalise the defendant under the powers which the Court is given under S. 35A of the Code. In my opinion the appeal should be allowed and the decree modified, and there will be a decree for Rs. 425. The suit might have been brought in the Court of Small Causes, and, if in a suit of this nature, the plaintiff recovers less than Rs. 300, he would not be entitled to any costs; if he recovers between Rs. 300 and Rs. 1000 he would be entitled only to costs on the Small Cause Court scale. We think that the proper order is that the plaintiff's decree be modified to a decree for Rs. 425 with costs on the Small Cause Court scale, and that there should be no order as to costs on this appeal in which each party has been partly successful. There will be direction for taxation on the Small Cause Court scale within a month of the completion of the decree. Gentle J. 10. I agree, and I desire to add a few words. There will be direction for taxation on the Small Cause Court scale within a month of the completion of the decree. Gentle J. 10. I agree, and I desire to add a few words. A question which was argued at considerable length is with respect to the position of the driver of the defendant's car, it being contended that at the time of the accident he was "upon a frolic of his own" and was not then acting in the course of his employment. Learned counsel on behalf of the defendant appellant conceded that, when it is established that a motor car is the property of a person and at the time of an accident it was being driven by that person's servant, there is a presumption that the servant was acting in the course of his duty as such and the owner is responsible. In the absence of any such concession, I should have had no hesitation in holding that to be the position in law. It then is the duty of the owner of the car, and the burden is cast upon him, to establish that at the time of the occurrence for which he would be responsible if the driver was at that time acting in the course of his duty, to show that the servant was "upon a frolic of his own." In the present case although correspondence took place, between the parties and between attorneys acting for them, before the suit, there was not a suggestion in any letter that the defendant's driver was acting outside his employment. Indeed, on 23rd April 1941, the plaintiff's attorneys wrote to the defendant, and in their letter they pointed out that, as owner of the car, the defendant was liable. In his reply of 5th May, there is no suggestion that his responsibility as owner did not more in respect of the period covering the happening of the collision at the junction of Lower Circular Road and Theatre Road. Further, the only evidence which has been given, in support of the defendant's contention regarding the absence of authority of the driver, is the testimony of two persons who are, in substance, employees of the defendant, Kesri Chand and Kasturchand. Further, the only evidence which has been given, in support of the defendant's contention regarding the absence of authority of the driver, is the testimony of two persons who are, in substance, employees of the defendant, Kesri Chand and Kasturchand. The evidence which both those witnesses gave has been disbelieved and a perusal of the shorthand transcript of their testimony reflects that the learned trial Judge was fully justified in rejecting what they stated when they were in the witness box. A further significant factor is present. The defendant at the time of the trial was in Calcutta, but he did not go into the witness box to give evidence; he was that person, above all, who could aver or deny the servant's authority at the time of the accident. Again, the driver himself was not called as a witness. There is nothing in this Case to displace the presumption which, very properly, Mr. Ghose on behalf of the defendant conceded is the position at law. That being so, the contention that the driver, at the time of the accident, was not acting in the course of his duty and on behalf of his master has no foundation in fact or circumstance. 11. Now with regard to the question of costs. The learned trial Judge, in directing the costs to be taxed as between attorney and client, followed the decision of Page J., in 52 Cal. 602 Nani Bala Sen v. Auckland Jute Company ('25) 12 A. I. R. 1925 Cal. 893 : 52 Cal. 602 : 89 I. C. 679. That was a claim under the Fatal Accidents Act in respect of the death of a relative of the plaintiff. Section 1, Fatal Accidents Act, provides that the amount recovered after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the parties entitled to share. Apparently it has been the practice adopted in this Court to direct a successful plaintiff in a claim under the Fatal Accidents Act to have his costs taxed as between attorney and client in order that the total amount of the damages recovered shall be available to him. It is not necessary for me to consider the correctness or otherwise of that practice. It is not necessary for me to consider the correctness or otherwise of that practice. The present case is a simple running down suit, a collision between two motor cars, and the claim, so far as is material, for repairing the motor car and for loss of its use If, in such circumstances, there is an order to tax the costs as between attorney and client so that the plaintiff may obtain a complete reimbursement of the cost of repair and for taxi fares etc., the effect will be that, whilst damages cannot be given in excess of the sum awarded, nevertheless indirectly the defendant will be made to pay increased damages over and above the claim which he properly must meet. So far as directing taxation as between attorney and client is concerned, it is proper so to do when, for example, there is statutory authority for it as is to be found in S. 22, Presidency Small Cause Courts Act, in regard to the defendant's costs in a suit brought in the High Court which should have been brought in the Court of Small Causes and in which the plaintiff fails to obtain a decree. Further, in my view, the provisions of S. 35A, Civil P. C., should not be applied in the present case assuming even that the defendant was guilty of false or vexatious conduct in putting before the Court a defence for which he had to rely upon the statements of others since he was not present at the time of the occurrence. Section 35A enables its provision to be applied when, in the case of the plaintiff his claim or in the case of the defendant his defence, is false or vexatious to the knowledge of the party concerned. In my view, the attempt by the plaintiff to suggest that he suffered any damage by reason of mental shock which afflicted him upon being told that his car had been concerned in an accident, is, and I can find no other way to express it, an impudent claim; he does not say that the shock was occasioned by hearing his son was concerned in the accident. The inclusion of such a claim, in my view, is vexatious to the knowledge of the plaintiff as envisaged by S. 35A, Civil P. C. That being so, the applicability of the section is not called for in the present suit. I agree that this appeal should be dealt with as my learned brother has directed in the course of his judgment.