Judgment :- 1. The defendant is the appellant. The original plaintiff was the Government of Cochin represented by the Secretary to Government. The subject matter of the suit related to the Cochin Devaswom which was at the time of the institution of the suit under the control of the Government of Cochin. It is now being managed by the Cochin Devaswom Board. So the plaintiff is now represented by the Secretary of the Devaswom Board, Cochin. The defendant is the Anamalai Timber Trust Ltd., represented by the managing director. 2. The Tripunithura Devaswom owned an elephant by name Narayanan Kutty which was leased out by the Government to the defendant company for one year with effect from 15.5.1117. The defendant company had executed an agreement Ext. E dated 10.6.1117 by which the services of the elephant and its two mahouts were taken over by the defendant company. After the period of one year, the term was extended for another year, as agreed to by the parties, under the original conditions except as regards the annual rental which was raised to Rs. 350/-. The elephant had two mahouts and they, along with the elephant, were lent to the defendant company under the agreement mentioned above. 3. The elephant was to be used for dragging logs of timber measuring not more than three Candies. The logs to be dragged by the elephant were to be selected by the servants of the defendant-company under instructions from the responsible officers of the company. Contrary to the undertaking, the elephant was used to drag oversized logs. On the morning of the 20th of Meenom 1118, the elephant had already dragged three logs of timber beyond the stipulated measurements. An oversized fourth log was also attempted to be got dragged by the elephant. The animal showed its disinclination to drag the heavy log and consequently, the mahouts belaboured the animal for a good length of time in the yard lying adjacent to the office and the sawing mill of the company in the presence of some of the servants of the company. During the course of such causing of hurt, the animal, out of pain, trumpeted aloud several times which attracted a number of persons in the neighbourhood. During the course of such causing of hurt, the animal, out of pain, trumpeted aloud several times which attracted a number of persons in the neighbourhood. None of the officers of the defendant-company prevented the infliction of such great violence to the elephant and they were grossly negligent in not preventing such hurt being caused to it. The mahouts were grossly negligent in inflicting such severe injuries. Subsequently, the animal died because of those injuries. 4. The defendant-company had a duty to take care and do every thing that was necessary to prevent voluntary causing of injuries to the elephant. The death of the animal was the direct consequence of the cruel and violent injuries caused by the mahouts on that day. The animal died at about 7.30 P.M. on the day it sustained the injuries. The postmortem examination conducted by the Veterinary Surgeon revealed the existence of serious injuries on the animal including even fracture of the cranium and injury to the brain matter caused by merciless beating. Sharp, blunt and resistant weapons have been used by the mahouts to measure the injuries. 5. The defendant-company was directly and vicariously liable for the damages consequent on the death of the elephant. The elephant was healthy on the morning of the 20th of Meenom 1118. It was aged only about 36 years. The minimum value of the animal on the date of its death was Rs. 8,000/-. The plaintiff claimed this amount as damages. The suit was filed for that purpose. 6. The defendant-company, in the written statement, admitted Ext. E, but stated that the elephant was not leased out to the defendant-company. The arrangement was only intended to make available to the defendant-company the services of the elephant Narayanan Kutty which was under the terms of the agreement Ext. E, to be and to continue to be in the possession and control of the Tripunithura Devaswom, through the mahouts appointed by that Devaswom. The words ""kL•U" ""kL•3/4MSjaO" etc. used in the document Ext. E would not change the real character of the arrangement between the parties. The company had no absolute control over the elephant, the working of the elephant was got through by the mahouts, who remained under the immediate and direct control and supervision of the Devaswom. The duties imposed upon the defendant-company had been mentioned in Ext. E itself. E would not change the real character of the arrangement between the parties. The company had no absolute control over the elephant, the working of the elephant was got through by the mahouts, who remained under the immediate and direct control and supervision of the Devaswom. The duties imposed upon the defendant-company had been mentioned in Ext. E itself. The care of the elephant had always been placed by the Devaswom in the mahouts, who were charged with that duty and whose services had been retained with the Devaswom so that due and proper care of the elephant might be with the Devaswom through its employees, the mahouts. The defendant-company had only to spend the necessary amounts for the feeding, maintenance and treatment of the animal. 7. It was untrue and misleading to state that a duty had been cast on the defendant-company to see that the elephant was not dragging timber measuring more than 3 Candies. Special skill was required to make the elephant work and that skill was exercised by the mahouts who were really under the control of the Devaswom. It was wrong to say that the mahouts were the servants of the defendant-company during the period of the agreement. During the period, within which the services of the elephant in question were made available to the Company, the Devaswom Department were exercising their rights of controlling the mahouts by granting leave, appointing mahouts other than the old ones and by similar other acts. This strengthened the position taken by the defendant. The lending of the services of the elephant for one year after the expiry of the first term was not in fact an extension of the agreement of the previous one year but was quite an independent transaction. 8. The plaint allegation that the elephant was made to drag during the period of the lease any log of timber measuring more than three Candies was untrue. It was equally untrue that the logs to be dragged by the elephant were to be selected by the servants of the defendant-company under the instructions from the officers. There were innumerable logs of varying measurements available to the company and no particular log was assigned to be attended to by Narayanan Kutty. There were other elephants also working in the yard. There were innumerable logs of varying measurements available to the company and no particular log was assigned to be attended to by Narayanan Kutty. There were other elephants also working in the yard. The elephant in question was a mischievous animal and it could not be made to do any work which it would not willingly do. The mahouts were aware of the restriction placed regarding the measurement of the logs which were to be drawn by Narayanan Kutty. The defendant-company stood to gain nothing by seeing that the elephant was compelled to drag an oversized log. The allegation, that on the 20th Meenom 1118, Narayanan Kutty was compelled to drag three oversized logs, was not correct. No attempt had also been made to get a fourth log drawn by this elephant. The statement, that the mahouts belaboured the animal because of its disinclination to drag any log, was quite unfounded. At any rate, the defendant-company had nothing to do with it. To the best information and knowledge of the defendant-company, the mahouts had in no way belaboured the animal nor had they attempted to make the animal do more work than it should have been made to do. The reference to the causing of hurt to the elephant in the present of the servants of the defendant company on the occasion, the animal having made several trumpettings, was untrue and unfounded. There was absolutely no ground or foundation for attributing gross negligence or any negligent act to the mahouts or for the statement that the animal died for want of reasonable care on the part of the mahouts. Even if the mahouts were negligent and the animal died on accounts of such negligence, the plaintiff could not hold the defendant-company liable for such negligence. The defendant-company was not in a position to state the cause of death of the elephant. The plaintiff was to prove the same. None of the employees of the defendant-company was aware of any injury caused to the elephant by the mahouts. Also the company was not aware of the implications of what the post-mortem examination had revealed. The defendant-company was therefore, in no way liable for the resulting consequences even if the mahouts had behaved in the manner mentioned in the plaint. None of the employees of the defendant-company was aware of any injury caused to the elephant by the mahouts. Also the company was not aware of the implications of what the post-mortem examination had revealed. The defendant-company was therefore, in no way liable for the resulting consequences even if the mahouts had behaved in the manner mentioned in the plaint. The defendant-company had not induced the mahouts to work the animal in any way other than as agreed to with the department or to cause the slightest injury to the elephant for getting work done by it or for any other purpose. It was wrong to state that any breach of contract was the proximate cause of the ill-treatment and the consequent death of the animal. The value of the animal, as mentioned in the plaint, was excessive. In view of its mischievous tendencies, the animal would not be worth more than Rs. 2000/-. 9. In the reply to the notice sent to the company all the true facts according to their best information and knowledge had been mentioned. The defendant-company had sent to the Commissioner of Devaswom a copy of the statement, which was given to the company by the mahouts, soon after the death of the elephant. The original was produced along with the written statement. The defendant-company had done all that was possible to give immediate information to the Devaswom Department and to provide timely medical aid to the elephant. The Company had spent Rs. 261-3 as-6 pies for removing and cremating the animal. The defendant-company was entitled to get that amount. This amount was not paid to the company. For this amount as well as for remission of rent consequent on the death of the animal and other dues due to the company, the company would seek relief by separate action. The defendant-company was acting as agents of the Supply Department of the Government of India and so the Government of India was a necessary party to the suit. The damages claimed by the plaintiff were too remote and the claim for such amount was not maintainable. Nor was the claim for interest sustainable. The suit was, therefore, pressed to be dismissed with costs. 10. The damages claimed by the plaintiff were too remote and the claim for such amount was not maintainable. Nor was the claim for interest sustainable. The suit was, therefore, pressed to be dismissed with costs. 10. The Court below found that the true nature and scope of the transaction between the parties was that of bailment, that the mahouts of the elephant were at the time of the death of the elephant the servants of the defendant-company, that the elephant died on account of the negligence of the mahouts in inflicting fatal injuries on it, that the mahouts being the servants of the defendant-company, the latter was liable for the acts of its servants, that the value of the elephant was Rs. 8,000, that the defendant was liable to pay the same, that the Government of India was not a necessary party to the suit and that the plaintiff was entitled to a decree, as prayed for. The suit was decreed, as prayed for in the plaint. The defendant has filed this appeal. 11. It had been admitted by the defendant-company that the services of the elephant Narayanan Kutty were requisitioned for timber work and this requisition was sanctioned by the Government on the 1st of December 1941. The Cochin Government was then controlling the affairs of the Devaswom. After executing Ext. E agreement on 23.1.1942 corresponding to 10.6.1117, the animal, with the two mahouts attached to it was taken possession of by the company. The elephant was taken on an annual rental of Rs. 300. It was secured possession of on 15.5.1117 and the rental was paid in advance to the Devaswom. The two mahouts, who were then attending the elephant, were also taken over along with the elephant. 12. The conditions agreed to by the defendant-company as per Ext. E are the following:- There would be no requisition for changing the two mahouts during the period of lease. Pay at the rate of Rs. 10 a month for each mahout and their pensionary contribution of Re. 1-10 As.8-Pies would be paid into the Tripunithura Devaswom before the end of every month. On days on which the elephant is used for timber work or for festivals the company would pay the travelling and daily expenses to the mahouts and also one rupee in addition. 10 a month for each mahout and their pensionary contribution of Re. 1-10 As.8-Pies would be paid into the Tripunithura Devaswom before the end of every month. On days on which the elephant is used for timber work or for festivals the company would pay the travelling and daily expenses to the mahouts and also one rupee in addition. If the elephant is used only for one day for festival, one rupee would be paid and for every additional day, 14 Annas would be given to the mahouts. The expenses for the feeding of the elephant and the mahouts would be met by the company. On the days on which the elephant is sent for timber work or for festival, it would be given in addition to the usual food one Para of rice, half an Edangaly of oil, besides powdered turmeric and salt. The necessary treatment during the months of Kumbhom, Edavom and Thulam would be done at the cost to be estimated by the Devaswom. If the elephant falls ill, the matter will be reported to the Devaswom and the necessary medical aid would be given. The elephant would be used for timber work for not more than 20 days a month. The elephant would not be allowed to drag logs weighing more than three candies. If the elephant is used for festivals for three consecutive days it will be given rest for one day. It will not be allowed to walk a distance of more than ten miles a day. A diary will be kept for noting down the daily work got done by the elephant and that will be attested by the mahouts. A copy of the diary for each month would be sent to the Devaswom before the fifth of the succeeding month. The elephant will not be taken beyond the territory of Cochin. It will be sent to the Tripunithura Devaswom one week before the beginning of the Utsavam in the temple in 1118. The necessary expenses for the elephant and the mahouts to go for the festival would be met by the Devaswom. If, for any other purpose, the Devaswom requires the services of the elephant, it would be sent to the place where it is required. In such cases the company will get such reduction in the rent as may be fixed by the Devaswom. If, for any other purpose, the Devaswom requires the services of the elephant, it would be sent to the place where it is required. In such cases the company will get such reduction in the rent as may be fixed by the Devaswom. The expenses for returning the elephant to Tripunithura after the period of the lease would be met by the company. If default is made in observing any of the above conditions, it is open to the Devaswom to get back the elephant from the possession of the company regardless of the non-termination of the period of the lease. 13. The above conditions are also given in the communication dated 5.12.1941 from the Assistant Commissioner of Devaswoms to the defendant-company. Exts. XIV is that letter. After the expiry of the one year under Ext. E, the company again applied for extending the period for another year. The company wrote Ext. F letter for the purpose. It is stated therein that the company required at least two of the three elephants which were working for them during the previous year. The two elephants required were Narayanan Kutty and Kutty Sankaran. There was a proposal to lease out these elephants to one Mytheen Rawther. But the company, however, managed to get it cancelled and get the services of Narayanan Kutty for another year. Mytheen Rawther had offered to pay Rs. 350 as rental for Narayanan Kutty. The company agreed to pay rental at this rate. Ext. R letter will show that. The company wrote Ext. K letter agreeing to pay Mytheen Rawther a sum of Rs. 100 as compensation for the loss he sustained as a result of the non-receipt of the animals from the company in time. The two elephants, Narayanan Kutty and Kutty Sankaran were also agreed to be taken on Pattom, on the rental fixed by the Government. There was no agreement embodying the terms of this extended lease. But it was admitted that the terms of Ext. E might be taken to govern the second arrangement also. 14. The terms under which the elephant Narayanan Kutty and its mahouts went to the custody of the defendant-company are as already mentioned above. Though there was a stipulation in Ext. But it was admitted that the terms of Ext. E might be taken to govern the second arrangement also. 14. The terms under which the elephant Narayanan Kutty and its mahouts went to the custody of the defendant-company are as already mentioned above. Though there was a stipulation in Ext. E not to ask for the change of the mahouts, it is seen that, when those mahouts wanted leave, the company used to recommend the leave and to request the Devaswom to appoint substitutes in their place. Exts. Q, AF, XVII, XXIV and XXXIX would who this. 15. It was while the elephant was working under this extended lease that it met with its death on 2.4.1943. That day the company had written Ext. C(1) letter to the Veterinary Surgeon at Chalakudy stating that the elephant Narayanan Kutty of the Tripunithura Devaswom was lying there due to exhaustion, according to the mahouts, and requesting him to over there immediately to render some medical aid. It is admitted by the Veterinary Surgeon, examined in this case as PW.1, that he went there and rendered some medical aid. The elephant, however died the same night and this fact was intimated to the Veterinary Doctor by the defendant by Ext. C(2) letter. The Devaswom Commissioner was also informed of the same on the same day by Ext. S letter. PW.1 conducted the post-mortem examination on the dead body of the elephant and issued Ext. A certificate. The certificate shows that the elephant was apparently in robust health. It had several injuries on its head. According to PW.1, the cause of death was heart failure consequent to fracture of the cranium and injury to the brain substance, probably caused by the violent blows with sharp, blunt and resistant weapons either intentionally or negligently. The Surgeon further certifies that it was an untimely death. 16. It is abundantly clear from the evidence in this case that these injuries were caused on the animal by its mahouts on the morning of the second of April 1943. This evidence is furnished by PWs. 2,3 and 6. There is also a statement given by another eye-witness. That is Ext. D. But the person who had given that statement was dead at the time the case was being tried in the lower court. 17. This evidence is furnished by PWs. 2,3 and 6. There is also a statement given by another eye-witness. That is Ext. D. But the person who had given that statement was dead at the time the case was being tried in the lower court. 17. On the morning of the 2nd April 1943 corresponding to 20th Meenom 1118, Narayanan Kutty was working in the compound adjoining the office of the defendant-company. PW.2 had seen this elephant dragging logs of timber for the company and on the day in question, while PW. 2 was in the temple close by he heard several times the trumpettings of the elephant. When he came out he saw one of the mahouts on the elephant and another on the ground. They were giving certain directions to the animal which it was not obeying. Then these mahouts were seen molesting the animal in turn. He felt disgusted with their cruel treatment and so he went back to the temple. After some time he came back to see how the matter faired, when he say the elephant lying down. He is the Karnavan of his Illom and is paying a tax of Rs. 700 to the State. He also proved the statement given by his Karnavan, Narayanan Namboodiri, who died on 17.9.1119. 18. Ext. D is the statement given by Narayanan Namboodiri before the Devaswom Assistant Commissioner, Tripunithura. The Illom was only about 100 yards from the place where the elephant was working. He stated, that on the morning of 20th Meenom 1118 he heard the trumpettings of the animal, that the same was caused by the molestation of the mahouts, that, if it were his elephant, he would have immediately stopped the mahouts from molesting the animal any further, that any responsible person would have intervened to stop the same, and that he was under the impression that the elephant was being molested out of all proportions. 19. The Tripunithura Devaswom had lent two elephants to the defendant-company for work. One was Kutty Sankaran and the other Narayanan Kutty. Both these elephants were working in the same compound adjoining the company office. Pws. 3 and 6 are the mahouts of Kutty Sankaran. They stated that on the day in question, Kutty Sankaran and Narayanan Kutty were working for the company. One was Kutty Sankaran and the other Narayanan Kutty. Both these elephants were working in the same compound adjoining the company office. Pws. 3 and 6 are the mahouts of Kutty Sankaran. They stated that on the day in question, Kutty Sankaran and Narayanan Kutty were working for the company. The work began at 7 A.M. Themselves and the mahouts of Narayanan Kutty were working under the orders of the defendant-company. The work was to drag logs of timber from the yard to the side of the mill. Every day the labourers of the company and the Maistri and some times the manager would come and mark out the logs to be dragged and such logs alone were to be dragged. There was no trouble till Narayanan Kutty dragged three logs of timber that morning. An attempt was made to get another log dragged. The elephant did not heed to the direction of the mahouts to drag the fourth log. The mahouts then belaboured the animal, and this belabouring lasted for more than an hour without any interruption. Their object was to get the log dragged by the elephant. The mahout on the elephant used the hook and knife and the one on the ground used the spear. The animal was speared on the forehead and the legs. Seeing this, they asked once or twice the mahouts of Narayanan Kutty to stop such cruel treatment. In their opinion, Narayanan Kutty was on that day tortured beyond limits. Within an hour after this, the elephant fell down. The two mahouts again belaboured the animal for some time more. 20. From the evidence of these witnesses and as seen from Ext. A, post mortem certificate, it is abundantly clear that Narayanan Kutty was beat, stabbed and speared by its mahouts as it refused to drag a particular log of timber which the company's people wanted to be dragged. 21. The next question for consideration relates to the legal relationship between the Devaswom and the defendant-company in regard to the lending of the animal and its mahouts by the former and the using of the same by the latter. 21. The next question for consideration relates to the legal relationship between the Devaswom and the defendant-company in regard to the lending of the animal and its mahouts by the former and the using of the same by the latter. The plaintiff would say that they stood in the position of bailor and bailee whereas, the defendant would contend that the whole arrangement was a lending out of the services of the elephant to be made available to the defendant-company by the mahouts appointed, controlled and paid for by the Devaswom and that the mahouts were working the elephant as the agents and employees of the Devaswom in their immediate and direct possession, control and supervision of the elephant. There was a contention by the defendant that the question of bailment had not been pleaded by the plaintiff in the pleadings and that, therefore, the plaintiff cannot rely on the law relating to bailment of the animal. The learned Advocate had also relied on Raymond Lincoln v. Mrs. Alice, AIR 1932 PC 95 and W.J. Rees v. John Young, AIR 1921 Cal. 543. It had been held in those cases that, in an action for damages for personal injuries, the plaintiff will fail if he does not prove his case and that he cannot ask the appellate court to find negligence on a quite different ground other than that set up by him. Though the plaintiff had not used the words 'bailee' or 'bailment' in the plaint, the allegation would indicate that that was the plaintiff's case throughout. In paragraph 3 of the plaint it was stated that the elephant was taken possession of by the defendant-company on the 15th day of Dhanu 1117, that the two mahouts of the elephant were also lent to the defendant-company, that the mahouts were, from the 15th day of Dhanu 1117, under the control of the defendant-company for the period of the lease and that the said mahouts were in law, the servants of the defendant-company during the period of the lease. This will satisfy all the conditions of bailment. The Cochin Contract Act is word by word the same as the Indian Contract Act on this question. So reference is made in this judgment to the sections of the Indian Contract Act, as that will facilitate the reference to the decided cases also. 22. This will satisfy all the conditions of bailment. The Cochin Contract Act is word by word the same as the Indian Contract Act on this question. So reference is made in this judgment to the sections of the Indian Contract Act, as that will facilitate the reference to the decided cases also. 22. Bailment is defined in S. 148 of the 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". "Bailment" is a technical term of the Common Law, though etymologically it might mean any kind of handing over. It involves change of possession. As pointed out in Sir Maurice Gwyer's edition (1944) of Pollock and Mulla's Commentaries on Indian Contract Act, one who has custody without possession, like a servant, or a guest using his host's goods, is not a bailee. At page 485 it is stated that on the whole a bailment might be described as a delivery on condition, to which the law usually attaches an obligation to redeliver the goods, or otherwise deal with them as directed, when the condition is satisfied; but there may be, in particular cases, a bailment without an enforceable obligation. S. 149 describes how the delivery to the bailee is to be made. The delivery 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. 23. The terms of Ext. E agreement have already been given above. Ext. E would show that the defendant-company had taken delivery of possession of the elephant and the two mahouts from the Devaswom on certain specified conditions with the undertaking to return the elephant and the mahouts after the appointed time. DW.1, the accountant in the defendant-company, would state how this arrangement was understood. E agreement have already been given above. Ext. E would show that the defendant-company had taken delivery of possession of the elephant and the two mahouts from the Devaswom on certain specified conditions with the undertaking to return the elephant and the mahouts after the appointed time. DW.1, the accountant in the defendant-company, would state how this arrangement was understood. He had stated that the company had the right to take the elephant in any part of Cochin to get work done, that the company had the right to get the work done as fixed by them, that work was got done by the elephant by giving orders to the mahouts, that ropes were to be tied to the logs to be dragged, that such logs alone could be dragged by the elephant, that this was the direction given by the company, that ropes were tied after the logs were selected, that on days of work the mahouts were given extra allowance, that the mahouts were to apply to the company if they wanted leave and that if the elephant was sent from the company for festivals the mahouts were to act under the direction of the company. Because of the physical condition of the elephant Narayanan Kutty, certain restrictions had been made as to how the elephant was to be worked. Apart from this, the company had the full discretion, right and authority to use the elephant for purposes of dragging the logs or for sending it for festivals or for any other legitimate work. In getting the work done by the elephant, the plaintiff did not retain any control over it. 24. As regards the relationship of the mahouts with the company, it will be referred to hereafter. So far as the elephant was concerned, it has been proved beyond doubt that the relationship between the plaintiff and the defendant was that of bailer and bailee. 25. It may now be considered as to the relationship of the mahouts with the company. The mahouts were to work the elephant for rendering services to the company. For this purpose the services of the mahouts were lent to the company. The mahouts were pensionable employees in the Devaswom. 25. It may now be considered as to the relationship of the mahouts with the company. The mahouts were to work the elephant for rendering services to the company. For this purpose the services of the mahouts were lent to the company. The mahouts were pensionable employees in the Devaswom. Where an officer of the Government is allowed to take service under an employer who is not under the orders of the Government or is appointed to a post the cost of which is met from funds which the Government have obtained control over, or have received in trust, and is allowed while in such service to maintain the claim to pension and leave in the same way as if he were still in the service of the Government, he is said to be in foreign service as understood in Art. 251 of the Cochin Service Regulation. Under Art. 254, an officer may be transferred by the Government to foreign service if the following conditions are complied with. (1) The service required of the officer to be transferred should be such as should, for public reasons and not merely in the interests of the officer concerned, be provided for by an officer of the Government. (2) The Officer must have a substantive appointment under the Government. (3) The Officer shall, while in foreign service, remain subject to the general and disciplinary rules which apply to officers in the service of the Government. (4) The transfer must be made by the Diwan with the sanction of His Highness the Maharaja. 26. It is one of the essential conditions that, when services of permanent employees under Government are lent, the foreign employer must pay a contribution towards the pension of the employee. We see all these essentials of foreign service in the agreement Ext. E and it is idle to contend that the mahouts were still under the employment or control of the Government, while they were attending on the elephant, which had been leased out to the defendant-company. The position in such cases as to the relationship of the master and servant is explained by Lord Shaw in Bull & Co. v. West African Shipping Co., AIR 1927 PC 173. The position in such cases as to the relationship of the master and servant is explained by Lord Shaw in Bull & Co. v. West African Shipping Co., AIR 1927 PC 173. The following passage appearing at page 175 will clarify the position: "Their Lordships think it only necessary to refer to Donovan v. Laing, (1893) 1 QB 629, for a clear exposition of the question to whom attaches responsibility for the act of a servant transferred, so to speak, for the convenience of working a chattel lent or hired to another. 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, (1893) 1 QB 629, 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 defendants' yet, as he 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. Lord Justice Bowan put the matter thus: '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 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 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'. The same law had practically been laid down in Bourke v. The While Moss Colliery, 2 CPD 205. The same law had practically been laid down in Bourke v. The While Moss Colliery, 2 CPD 205. In the opinion of their Lordships, the law stands exactly where Cockburn, C.J., there put it, namely, as follows: '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'. These cases have a habit of repeating themselves, and there are others in the books to the same effect, but their Lordships think it only necessary to refer to Bain v. The Central Vermont Ry. Co., AIR 1921 PC 221, in which Lord Dunedin approves of the language of Mr. Justice Cross in the Court of King's Bench of Quebec, who had adopted the suitable phraseology of 'patron momentane' and'patron habitual'. The responsibility in respect of which negligence on the part of a servant in circumstances such as of that and of the present case attaches to the former and not to the latter." The decisions in Francis v. Shanghai Dock and Engineering Co., AIR 1921 PC 188, Bain v. Central Vermont Ry. Co., AIR 1921 PC 221, Canadian Pacific Railway Co. v. Leonard Lockhart, 1943 PC 63, Bappukutty v. M/s. Pierce Leslie & Co. Ltd., 1121 Cochin Law Reports 104 FB and M/s. Niranjan Lal v. M/s. Ram Swarup, (1950) 5 DLR All. 326 are all in support of the position, that when one person lent his servant to another for a particular employment, the servant, for anything done in the course that particular employment, must be dealt with as the servant of the man to whom he is lent, though he remained the general servant of the person who lent him. 27. The appellant's learned Advocate had also referred to certain decision, viz., Century Insurance Co. v. Northern Ireland Road Transport Board, 1942 AC 509, Waldock v. Winfield (1901) 2 KB 596, Hobson v. Bartram and Sons Ltd., (1950) 1 AER 412, Dowd v. W.H. Boase & Co. Ltd., (1945) 1 KB 301, Garrard v. Southey & Co., (1952) 1 AER 597, Kent County Council v. Folkestone Corporation (1905) 1 KB 620, and Clelland v. Edward Lloyd Ltd. (1938) 1 KB 272. 28. In the case reported in Century Insurance Co. Ltd., (1945) 1 KB 301, Garrard v. Southey & Co., (1952) 1 AER 597, Kent County Council v. Folkestone Corporation (1905) 1 KB 620, and Clelland v. Edward Lloyd Ltd. (1938) 1 KB 272. 28. In the case reported in Century Insurance Co. v. Northern Ireland Road Transport Board, 1942 AC 509, the contract considered there did not contemplate any transfer of service as contrasted with the transference of service. At page 513, the test in such case was laid down thus: "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". 29. In Waldock v. Winfield (1901) 2 KB 596, the driver of a van supplied to a company was guilty of negligence. There was no evidence that any one representing the company exercised any control over the driver in respect of the delivery of goods for the company. Under such circumstances, it was held that the company was not liable. 30. In Hobson v. Bartram and Sons Ltd., (1950) 1 AER 412, the plaintiff was employed by a company which was engaged by the defendants to install refrigerating machinery in a ship which they (the defendants) were building for the Argentine Government. When the ship was taken on its trial at sea the plaintiff was invited by the defendants to accompany it to complete the work which he was doing. On the trial, the defendant's general manager was in charge, and the ship was worked by a crew provided by the defendants. In addition, there was an Argentine crew on board, but their only purpose was to observe the ship's performance prior to it being accepted by the purchasers. On a particular day the plaintiff was working near a hatchway, which was battened down, the place being lighted by a lamp. During the plaintiff's temporary absence, the hatch was opened and the lamp removed by members of the Argentine crew who wished to examine the hold. On his return to work the plaintiff fell down the hatchway and was injured. During the plaintiff's temporary absence, the hatch was opened and the lamp removed by members of the Argentine crew who wished to examine the hold. On his return to work the plaintiff fell down the hatchway and was injured. On a claim by the plaintiff against the defendants for damages for negligence, it was held that the fact that there was a common interest between the defendants and the purchasers in the inspection of the hold was not sufficient to make the Argentine crew, who were the servants of the purchasers, the agents of the defendants; the fact that the defendants' manager (who was in the position of captain) necessarily had control over all the acts of all persons in the ship did not make those persons his agents for all purposes; and, there being no evidence that the defendants had delegated any duties to any member of the Argentine crew, they (the defendants) were not liable for the injury caused by the Argentine seamen's negligent acts. In that case there was no relationship between the persons who, by their negligence, caused the injury to the plaintiff and the defendant who had engaged the company of which the plaintiff was a servant. The facts will not apply to the case in hand. 31. In Dowd v. W.H. Boase & Co. Ltd., (1945) 1 KB 301, it was held that in each case the question as to who was the superior at the time of the accident must depend upon the facts of that case and that no case can be said to govern another, unless the facts are similar in all respects. It was pointed out there that "One test in cases of a vehicle lent with its service to a hirer, is this question, in the doing of the negligent act was the workman exercising the discretion given to him by his general employer, or was he obeying or discharging a specific order of the party for whom upon his employer's direction, he was using the vehicle or other instrument?" This test also cannot be applied in the present case in appellant's favour. 32. In Garrard v. Southey & Co., (1952) 1 AER 597, the facts are as follows: Electrical contractors agreed with the occupiers of a factory that two of their employees should work at the factory on certain electrical installations. 32. In Garrard v. Southey & Co., (1952) 1 AER 597, the facts are as follows: Electrical contractors agreed with the occupiers of a factory that two of their employees should work at the factory on certain electrical installations. The contractors continued to employ the men, paying their wages, stamping their insurance cards, and retaining the sole right to dismiss them. The electricians worked exclusively at the factory, used the canteen there, and conformed to the hours of work observed in the factory. They were supplied by the occupiers of the factory with all materials, tools, plant and equipment, except for certain special tools which were their own property, and their work was supervised by a foreman employed by the occupiers, who required the men to follow practices customary at the factory instead of those of the contractors. One of the electricians was injured through a piece of defective plant. It was held that the occupiers of the factory and not the electrical contractors owed the injured electrician the common law duty of a master to his servant to provide proper plant and equipment, and, therefore, were liable to him for breach of that duty. The case is more in favour of the plaintiff than to the defendant. 33. In Kent County Council v. Folkestone Corporation (1905) 1 KB 620, where a contractor, engaged by a corporation to widen one of their roads, caused damage to some other roads which were repairable by the county council, it was held that the council's action for damages against the corporation was maintainable as the damage was caused in consequence of the order of the Corporation. 34. In Clelland v. Edward Lloyd Ltd. (1938) 1 KB 272, an apprentice of the defendants was working with the men of an independent contractor, not in response to any request from or agreement with the contractor. For tortious act done by the apprentice, it was rightly held that the defendants were liable and the contractor was not liable. 35. 34. In Clelland v. Edward Lloyd Ltd. (1938) 1 KB 272, an apprentice of the defendants was working with the men of an independent contractor, not in response to any request from or agreement with the contractor. For tortious act done by the apprentice, it was rightly held that the defendants were liable and the contractor was not liable. 35. The principles laid down in these cases would show that in the present case, if the mahouts were the servants of the defendant-company at the relevant time and if the injuries to the animal were rightly or wrongly caused in the course of the performance of the duties allotted to them by the defendant, then the defendant-company would be liable for the tortious act done by the mahouts. But a distinction has to be drawn as pointed out in Canadian Pacific Railway Co. v. Leonard Lockhart, 1943 PC 63. It was decided there that a master is responsible not merely for what he authorises his servant to do, but also for the way in which he does it. If the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible; for, in such a case, the servant is not acting in the course of his employment, but has gone outside of it. Each case has to be decided on its own facts. 36. The evidence of PWs. 2,3 and 6 would show that Narayanan Kutty was on the morning in question employed in the work allotted by the defendant-company. It had already dragged three logs of timber, but it refused to drag the fourth log. It was for inducing it to drag the log for the benefit of the company that the mahouts molested it with hook, knife and spear. Though they had done something in excess of what they were expected to do, it cannot be denied that they did this in obedience to the orders of the company to get the log dragged by the reluctant elephant. The conclusion, therefore, is that the mahouts 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 conclusion, therefore, is that the mahouts 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. So, for the acts of the mahouts, the defendant-company is certainly liable. 37. The company had not admitted in the written statement that the animal died of injuries caused by the mahouts. The elephant was working the yard adjoining the company's office. The elephant was trumpetting several times as sworn to by the witnesses. It was being molested and injured. It cannot be said that none of the company's servants knew of this then and there. Their denial in the written statement is not supported by any bona fides, particularly, when they were attempting to give another explanation for the death of the animal. They had taken Ext. V statement from the mahouts of Narayanan Kutty on the date of the incident itself. The mahouts have stated that the elephant became unruly, that it wanted to attack its mahouts and that it caught hold of a timber and threw it high, which by accident, fell on its head and thereby caused the injury. No attempt was made by the defendant to substantiate this, though the defendant had filed this statement along with the written statement. That itself would indicate the absence of bona fides on the part of the defendant. Their object was to show that the elephant met with its death by accident and not by any violence. It is seen from Ext. C(3) that PW.1 had forwarded copy of Ext. A post mortem report for the perusal of the company and for use in their file. The defendant was, as bailee, 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. Vide S. 151 of the Contract Act. The evidence of PWs. 2,3 and 6 and the circumstances in the case would show that the defendant had not taken as much care of the elephant as was expected of it to do. No attempt had been made by any of the servants of the company to stop the assault on the animal, though it was trumpetting aloud for a long time. 38. 2,3 and 6 and the circumstances in the case would show that the defendant had not taken as much care of the elephant as was expected of it to do. No attempt had been made by any of the servants of the company to stop the assault on the animal, though it was trumpetting aloud for a long time. 38. The bailee must return the goods without demand, on the due date. Failure to return, renders him liable for the loss or damage to goods from the date of default. The law presumes negligence to be the cause and casts upon the bailee the burden to show that loss is due to causes consistent with due care on his part. That was the decision in Kush Kanta Barkakati v. Chandra Kanta Kakati, AIR 1924 Cal. 1056. Nothing of the kind was done in this case. The defendant is, therefore, liable to account for the elephant to the plaintiff. 39. The plaintiff had claimed Rs. 8,000 as the value of the elephant. For this, there is only the evidence of PW.1, the Veterinary Surgeon. DW. 5, who owned elephants and who was also in the habit of lending elephants, would put the value of Narayanan Kutty at Rs. 6,000. It had been given in 1117 on lease for one year at a rental of Rs. 300 excluding all expenses. For 1118, the rent was fixed at Rs. 350. Six per cent interest on Rs. 6,000 would come to Rs. 360. So, the purchase value may be fixed at a figure which would fetch six per cent interest per annum. The estimated value given by DW. 5 is, therefore, more acceptable. The value of the elephant is fixed at Rs. six thousand. 40. It was admitted by the respondent's learned Advocate that the teeth and tusk of the elephant were taken by the plaintiff. Mr. Achutha Menon on behalf of the respondent stated that the value of the same was Rs. 307-4 As. Deducting this, we find that the plaintiff is entitled to get an amount of Rs. 5692-12-0 (Rs. Five thousand six hundred and ninety two and twelve annas) from the defendant-company. 41. Certain amounts are also due to the defendant-company from the plaintiff because of the death of the elephant before the entire period covered by the lease was over. Deducting this, we find that the plaintiff is entitled to get an amount of Rs. 5692-12-0 (Rs. Five thousand six hundred and ninety two and twelve annas) from the defendant-company. 41. Certain amounts are also due to the defendant-company from the plaintiff because of the death of the elephant before the entire period covered by the lease was over. During the second period of lease the elephant worked only for about three months so that the defendant-company is entitled to an abatement of the pattom to the extent of 75 per cent, that is, three-fourths of Rs. 350. That comes to Rs. 262-8-0. A sum of Rs. 261-3-6 had been claimed by the defendant-company for burrying the dead body of the elephant. But in Ext. Y they claimed only Rs. 150/- on this account. In order to settle the accounts between the parties we allow these two sums. So the balance due to the plaintiff is Rs. 5280-4 As. 0 pies. Thus, in modification of the decree of the lower court, we allow the plaintiff a decree for Rs. 5280-4 As.-0 pies (Rupees five thousand two hundred and eighty-four annas-zero pies) with interest at six per cent per annum from the date of suit till the date of the decree of the lower court. The interest thereafter on the aggregate amount would be six per cent per annum. The plaintiff will get the costs here and in the court below, taking the plaint claim to be Rs. 6,000 instead of Rs. 8000/-. Decree Modified.