V. S. DESHPANDE ( 1 ) THE claim of the appellants under section 110-A of the Motor Vehicles Act for compensation for the death of Ram Lakhan (husband of appellant Mo. 1 and father of appellants 2 to 4) was dismissed by the Motor Accidents Claims Tribunal against all the three respondents, viz. against respondent No 1, Dayal Singh on the ground that he was not driving the truck when the fatal accident took place causing the death of Ram Lakhan, against respondent No. 2, Delhi Municipal Corporation, Delhi, because the act of the driver was not in the course of the employment and, therefore, the employer was not liable for his act and against respondent No. 3 the Indian Insurance Companies Association Pool, as the question of the liability of the Insurance Company was not pressed. Hence this appeal by the claimants. ( 2 ) THE admitted facts are that the Motor Vehicle belonging to the Municipal Corporation of Delhi was within the premises of the said Corporation in which Ram Lakhan also lived with his family. Ram Lakhan was at the water tap when the vehicle dashed against him from behind and killed him. The claimants are the widow and the children of Ram Lakhan. In the application under section 110-A of the Motor Vehicles Act the claimants alleged that the vehicle was driven by respondent No. 1, Dayal Singh, and that it was owned by respondent No. 2, and also that it struck Ram Lakhan from behind and crushed him to death In the written statement filed by the Delhi Municipal Corporation these allegations made in paragraph 1 of the claim petition were admitted. The claimants further alleged that the death of Ram Lakhan was due to the negligence of Dayal Singh. This was denied by the Delhi Municipal Corporation But the next allegation of the claimants that the Delhi Electricity Supply Undertaking was the owner of the vehicle and that the undertaking was a part of the Delhi Municipal Corporation and that the said Corporation was liable to compensate the claimants for the death of Ram Lakhan under the circumstances explained above was not denied by the Corporation. But the Corporation stated that it was prepared to pay a sum of Rs. 800. 00 to the claimants under the Workmens Compensation Act. But the Corporation stated that it was prepared to pay a sum of Rs. 800. 00 to the claimants under the Workmens Compensation Act. The allegation of the claimants that the accident was caused by the negligence of Dayal Singh and that the Corporation was liable to pay compensation to the claimants under sections 1 10 to 110-F of the Motor Vehicles Act) was not denied by the Corporation either specifically or by necessary implication and shall therefore, be taken to be admitted by them in view of the principle underlying Order 8 Rule 5, Civil Procedure Code The mere statement that the Corporation was prepared to pay compensation under the Workmen s Compensation Act did not mean that the Corporation was denying that the driver was negligent and that the Corporation was the owner of the vehicle. In view of these admissions made by the respondent No 2, Delhi Municipal Corporation, the only issue between the claimants and the Corporation would be under what law is the compensation payable to the claimants to be assessed and what should be this amount. The learned counsel for the respondent-Corporation has, however, pointed out that nowhere in the statement of claim have the claimants stated that the vehicle was being driven by the servant of the Corporation in the course of his employment. It is true that there is no such specific pleading by claimants. The questions which arise for decision in this case, therefore, are as follows :- (1) Whether the absence of a specific pleading that the accident caused by the sen ant of the Corporation was in Ihe course of his employment is fatal to the claim ? (2) Under what law was the compensation payable by the Corporation to the claimants ? and (3) If so payable, to what amount of compensation are the claimants entitled ? (1) In considering the absence of the specific pleading regarding the course of the employment, the following points are to be borne in mind, viz : (a) That the claim was under section 110 of the Motor Vehicles Act, which meant that it was made to the Tribunal established thereunder for the purposes of adjudicating upon claims for compensation in respect of accidents involving death or bodily injury to persons arising out of the use of the Motor Vehicles. (b) The Corporation has admitted the claimants allegations that the accident was caused by the negligence of the driver of the Corportion and the Corporation was liable to pay compensation to the claimants for the death of Ram Lakhan. The only reason why the liability of the Corporation to pay compensation to the claimants for the death caused by the negligence of the servant of the Corporation was not denied by the Corporation could be that the Corporation felt itself bound by the acts of its servant. It could feel itself so bound only if the act of the servant was done during the coarse of the employment. At any rate, if the Corporation chose to admit its liability for the act of its servant, we must take it that the act of the servant was done during the course of the employment. (c) When it is known that the death of a person is caused by the motor vehicle be- longing to a certain person and the vehicle was driven by a servant of the owner of the vehicle, a presumption would arise that the servant was acting during the course of his employment. Such presumption arises under section 114 of the Evidence Act. For, taking into account the human nature and the ordinary conduct of mankind the owner of a motor vehicle would keep with himself the key of the motor vehicle and would entrust the key only to a person like his servant who would drive the motor vehicle for and on behalf of the owner. This would be so in the vast majority of cases in which a vehicle belonging to the owner is found to be driven by a person other than the owner. This presumption is, of course, rebuttable and in an exceptional case the owner may be able to prove that the person driving the motor vehicle, though his servant, was doing so outside the course of his employment. In the absence of such proof, however, the presumption would be that the servant of the owner was driving the vehicle in the course of the employment (State v. Bhagwan Singh Gyarsilal v. Sitacharan Dubey. In the absence of such proof, however, the presumption would be that the servant of the owner was driving the vehicle in the course of the employment (State v. Bhagwan Singh Gyarsilal v. Sitacharan Dubey. In S M Kalal v. S. J Bhatt, also the Supreme Court recognised that there was a presumption that a vehicle is driven on the master s business and by his authorised agent or servant though the presumption is rebuttable. In view of the presumption the technical lacuna in the pleadings of the claimants may be said to be cured. There is no such insufficiency of the pleadings in the circumstances as would prejudice the success of the claim of the claimants. In Kedar Lal Seal v. Hari Lal the plaintiff had not specifically pleaded that he was entitled to subrogation. But, their Lordships observed in paragraph (5) of the judgment that no other kind of decree could be given in the circumstances of the case under Order 34 of the Code of Civil Procedure. Therefore, though the word subrogation was not used, in substance, the relief asked for was the same. In Ganeandranath v. Satish Chandra, it was contended that the plaintiffs were not entitled to a decree on the basis of the resettlement of land which case was never made out by them and which was inconsistant with the pleadings and evidence and that on the facts proved there could not be any legal inference of resettlement. This contention was negatived by the Supreme Court with the following observations :- "the facts from which an inference of resettlement has been drawn by the courts below were alleged in the plaint and on those facts such an inference could justifiably be raised. . . . . . . . . In these circumstances "the absence of a specific pleading as to resettlement could not, in any way, be said to prejudice the plaintiffs (misprinted as defendant No. 15) case. . . . . . . . . In these circumstances "the absence of a specific pleading as to resettlement could not, in any way, be said to prejudice the plaintiffs (misprinted as defendant No. 15) case. " The above mentioned observations of the Supreme Court fullyapply to the present case, inasmuch as the pleadings made by the claimants that the vehicle of the Corporation was negligently driven by its servant and that the Corporation was liable to pay compensation to the claimants necessarily implied the pleading that the servant acted in the course of the employment, specially because the specific pleadings were admitted by the Corporation and even the liability to pay compensation was not denied by the Corporation. (d) In the actual evidence Dayal Singh denied that he was driving the vehicle, but this evidence has to be rejected as being contrary to the express admission made by the Corporation in the written statement. It frequently happens in motor accident cases that the actual driver who may be prosecuted or against whom a claim for compensation may be made denies that he was driving the vehicle and puts up a defence that somebody else, who is not a party to the proceedings, was driving it. Dayal Singh s evidence that one Sarwan Kumar was driving the vehicle is of this type. It is in evidence however, that both Dayal Singh and Sarwan Kumar were the employees of the Corporation. Dayal Singh admitted that it was the duty of Sarwan Kumar to wash the vehicle and according to the foreman in charge of the vehicle both Dayal Singh and Swaran Kumar were to wash the vehicle of the Corporation. It is true that neither Dayal Singh nor Sarwan Kumar was a qualified driver. It is well known, however, that persons other than the driver, who have to work with the vehicle, are keen to learn driving and most of the drivers are unable to deny them the facility of learning driving on the master s vehicle. The Dehli Municipal Corporation is a big employer. The servant in charge of the vehicles would have other servants working under him. The Dehli Municipal Corporation is a big employer. The servant in charge of the vehicles would have other servants working under him. If it was the duty of the driver to drive the vehicles and he allowed either Dayal Singh or Sarwan Kumar to drive the vehicle to take for washing, then the driving of the vehicle by Dayal Singh or Sarwan Kumar was an improper manner in which the driver of the motor vehicle did his duty Viewed in this light, the act of Dayal Singh or Sarwan Kumar was really the act of the driver and was, therefore, within the course of the employment of the driver making the Corporation liable. From another angle, the Corporation and such of its servants who were incharge of the motor vehicles must have known that if the vehicle is left to be handled by washermen of the vehicle, it was likely to be driven by them. It could be said, therefore, that the owner of the vehicle had consented to the handling of the vehicle by the washerman of the vehicle This could make these washermen agents of the owner and the washing of the vehicle being for the purposes of the owner of the vehicle, the negligence of such agents makes the owner of the vehicle liable to pay compensation. This reasoning is also supported by paragraphs (8) and (12) of the majority decision of the Supreme Court in S M. Kalal v S. J Bhatt, referred to above The admissions in the pleadings and the evidence on record show that Ram Lakhan was at the tap when the vehicle suddenly came from behind and killed him The vehicle was not entitled to knock down a person who was at the water tap as the vehicle had no business to be so near the water tap. These facts attract the principle of res ipsa loquitur. The negligence of the driver is apparent from the way in which the accident had been admitted by the Corporation I, threfore, find that the death of Ram Lakhan was caused by the servant of the Corporation driving the vehicle of the Corporation in the course of his employment and, thus, making the Corporation liable to pay compensation for the death of Ram Lakhan. (2) There is no pleading either by the claimants or by the Corporation that Ram Lakhan was an employee of the Corporation, though this appears in the evidence. The claim is expressly based on the negligence in the driving of the motor vehicle belonging to Corpora ion by its servant and I have held that this was done during the course of employment It is, therefore, a claim for compensation under the law of Torts for the trial of which the Motor Accidents Claims Tribunal was established by section 110 of the Motor Vehicles Act. The compensation for such negligence is assessible under the principles of law of Torts and would be higher than the compensation payable under the Workmens Compensation Act. No claim was made under the Work- mens Compensation Act, nor was there any pleading to show that the claim was covered by the Workmens Compensation Act. I, therefore, hold that the compensation is payable under the Law of Torts and not under the Workmens Compensation Act. (3) The evidence of the Corporation is that Ram Lakhan was about 26 years old and was getting wages of about 50. 00 per month. The average life longevity in India is about 50 years. This is only the average. which is low because of the high figure of infant mortality in India. Once a person has survived the infancy his longevity is likely to be longer than the average. Of course which risks attended the work done by Ram Lakhan in hi? humble capacity and the danger of disease attacking him in his poverty are also to be taken into account. Making allowance for these considerations it may be said that Ram Lakhan would have lived for about 20 years more, that is up to the age of 46 certainly, if not more. ( 3 ) THE compensation payable to his dependents is to be that part of Ram Lakhan s wages which Would have been spent on his dependents during these 20 years, if Ram Lakhan, would have liked for those 20 years. Ram Lakhan s pay was Rs. 50. 00 per month. He was the head of the family and would spend more on himself than on each member of the family. It may be said, therefore, that out of Rs. 50. 00 Rs. 20. 00 would have been spent by Ram Lakhan on himself and Rs. 30. Ram Lakhan s pay was Rs. 50. 00 per month. He was the head of the family and would spend more on himself than on each member of the family. It may be said, therefore, that out of Rs. 50. 00 Rs. 20. 00 would have been spent by Ram Lakhan on himself and Rs. 30. 00 on hisfamily. The death of Ram Lakhan has, therefore, caused a loss to the claimants of Rs. 30. 00 per month or Rs. 360. 00 per year. For 20 years, this amount comes to Rs. 7200. 00, As a rule, a deduction from such a total claim is made when the payment of the whole claim is accelerated and made in a lump-sum instead of being spread over in instalments for over 20 years. In the present case, however, Ram Lakhan was killed by the vehicle of respondent No 2, Delhi Municipal Corporation, on 7-5-1959 and it is already over ten years that the payment of the claim to his widow and children has been delayed. I do not, therefore, make any deduction from the, total claim on account of accelerated payment. ( 4 ) THOUGH the General Manager of the Electricity Department of the Delhi Municipal Corporation was wrongly joined by the claimants as respondent No. 2, the Delhi Municipal Corporation has alone treated itself as respondent No 2 without raising any objection that the said General Manager was wrongly joined as a party. The written statement was filed by the Corporation and the claim was throughout defended by it. The Corporation has, therefore, definitely acted as respondent No 2 and is, there fore, deemed to be a party to this litigation without protest. ( 5 ) I, therefore, allow the appeal and set aside the order of the Motor Accidents Claims Tribunal and order that respondent No. 2, Delhi Municipal Corporation. do pay the claimants an amount of Rs. 7200. 00 with corresponding costs.