Krishna Bus Service Ltd. Vs. Smt.
Mangli & Ors [1976] INSC 8 (21 January 1976)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
FAZALALI, SYED MURTAZA
CITATION: 1976 AIR 700 1976 SCR (3) 178 1976
SCC (1) 793
ACT:
Negligence-Vicarious responsibility of the management
in fatal injury cases-Presumption when arises-Liability is on both the rash and
negligent driver and the management since the driver acted "in the course
of its employment".
Duty to care-Absence of explanation by the
defendants affords reasonable evidence towards contributory negligence.
Maxim-Res ipsa loquitur-Applies to fatal
accident cases on road.
Second appeal-Reappraisal of evidence on
record by Supreme Court only in exceptional cases where injustice would result.
HEADNOTE:
One of the buses belonging to the appellant,
DLB 5749, driven by "HS" enroute to Hissar, while negotiating a turn
in village Kheri Sadh overturned, causing the death of "LWS" and
injuries to many. At the time of the fatal accident, the bus was over-loaded
with passengers and goods, driven by "HS" at an excessive speed
despite protests by the passengers while negotiating a turn.
A suit for damages was filed by the legal
heirs of deceased "LWS" against the driver and the appellant, the
liability of the appellant arising out of the fact of its negligence in
employing such a rash and negligent driver who was responsible for the accident
acting in the course of its employment. The appellant took the plea of
"vis major", there being rain on the fateful day and the breaking of
the tie-rod of the vehicle when it fell into a pit and making the bus out of
the control of the driver. The suit was dismissed fixing the "quantum
damni-ficatus" at Rs. 34,210/- applying the principle of "quantum
meruit" and on appeal the Punjab and Haryana High Court held that the
accident was due to negligence attributable to the driver or both the driver
and the appellant and decreed the suit, basing on the cogent and trustworthy
evidence of P.Ws. 5, 6 and 8 to these facts (i) overload of the bus with goods
and passengers; (ii) Witness and slippery nature of the road due to drizzling
(iii) The expert report of the mechanic to the effect that the
"tie-rod" of the vehicle was only "opened" (dismantled) but
not broken and the bad conditions of the foot-brake and hand brakes: (iv)
Factum of negotiating a turn and passing through the habitation of village
Kheri; (v) Zig-zag movement of the bus and the fast speed at which the bus was
driven despite protests and shouts of the passengers. (vi) The actual) speed of
the bus at 30 miles per hour at the time ", of the accident and (vii) over
turning of the bus resulting in the death of "LWS" on the spot and
injuries to many. The High Court, drawing an adverse inference against the
appellant and the driver for non-appearance in the witness box held that
"inasmuch as buses in sound road worthy condition and driven with ordinary
care do not normally overtime, and in this case the bus did overturn, the
principle of "res ipsa loquitur" applied." The High Court also
awarded a decree for Rs. 21,600/- with proportionate cost as damages against
the appellant and the driver limiting the liability of Rs. 2,000/- only against
the insurance company.
On appeal by certificate the appellant
contended (i) that it was wrong to assume that over-turning of the bus was
"res ipsa loquitur"; (ii) that it was wrong to shift the onus on the
appellant to show that they were not negligent and (iii) that in the absence of
specific assignment of the reasons by the witnesses in their evidence the sudden
breaking` of the tie rod was the cause of the accident and hence a vis
major".
Dismissing the appeal, the Court, 179 ^
HELD: (1) ordinarily in second appeal, it is
not necessary for the court to reappraise the evidence on record because the
first appellate court is supposed to be the final court of fact. [182E] (2)
Buses in sound road worthy condition, driven with ordinary care, do not
normally over-turn. It would be for the driver who had special knowledge of the
relevant facts to explain why the vehicle over-turned. The maxim "res ipsa
loquitur" would be attracted in such a case. In the present case, the
defendants failed to rebut the presumption of negligence that arose from the
manifest circumstances of the case. [184 C-D] Shyam Sundar and others v. State
of Rajasthan, A.I.R.
1974, S.C. 890, not applicable.
Barkway v. South Wales Transport Co. Ltd.
[1948] 2 All.
E.R. 460, applied.
(3) Viewed in the light of the other
circumstances, in the instant case, like overloading, negotiating of a turn near
the village habitation on a slippery road a duty was cast on the driver to go
dead slow. A speed of 25 to 30 miles per hour, in these conditions and in this
situation, at the turning of the road would be imprudently excessive.
[184A-B] (4) Had the bus been properly
maintained in a sound road worthy condition and used with due care and driven
with due caution, the tie-rod should not have broken loose by the fall of the
wheel in a pit hardly six inches deep, particularly when the upward thrust of
the water in the pit would have largely absorbed the shock of the fall. The pit
was in the kacha berm and not right in the mettled portion.
The driver could have with ordinary care and
diligence avoided it. Thus, the breaking of the tie-rod-assuming it did break-was.
at best, a neutral circumstance. [184 B-C] (5) In the instant case the driver
was admittedly an employee of the appellant-company, and at the relevant` time
he was acting in the! course of his employment. The vehicle was the property of
the appellant-company under whose management defendant 3 was working at the
material time. It s well settled that where in an action for negligence the
thing causing fatal injury to the deceased and consequent pecuniary loss to the
plaintiff, is shown to be under the management of the defendant or his servants
and the accident is such as in the ordinary course of events, does not happen,
if those who have the management use proper case, that affords reasonable
evidence, in the absence of explanation by the defendants, that the accident
arose from want of care. The appellant company was, therefore, fully liable for
the negligent act of their employee and the injury resulting there from. [185
D-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 971 of 1968 From the judgment and decree dated the 10-5-1965 of the Punjab
High Court at Chandigarh in R.F.A. No.181 of 1957.
S. K. Mehta, K. R. Nagaraja and P. N. Puri
for the appellant.
V. M. Tarkunde, J. P. Agarwal and Miss Manik
Tarkunde for respondents 1-6.
The Judgment of the Court was delivered by
SARKIRIA, J.-This appeal on certificate is directed against a judgment of the
High Court of Punjab and Haryana awarding to the plaintiff-respondents a decree
for Rs.
21,600. It arises out of these facts:
On January 21, 1955, Lala Wazir Singh
deceased, a retired Divisional Engineer (Railways) was traveling from Delhi to
Hissar by a bus belonging to the Krishna Bus Service Ltd. (hereinafter referred
to as the Company). On the way, the vehicle went out of order.
180 Lala Wazir Singh and some other
passengers were then transferred to another bus No. DLB 5749 belonging to the
same Company. This bus was being driven by Harbans Singh, defendant 3
(Respondent 8 herein) who was an employee of the Company, acting under its
directions and instructions. When at about 3 p.m., this bus was negotiating a
turn in village Kheri Sadh, a few miles from Rohtak, it over turned, causing
the death of Lala Wazir Singh, at the spot and in injuries to several other
passengers.
The widow, the sons, the daughters, the
grandsons and grand daughters of the deceased instituted a suit in the court of
the Subordinate Judge, 1st Class, Rohtak for the recovery of Rs. 50,000 as
damages for the loss caused to them on account of his death. The Company was
impleaded as defendant No. 1, the Insurance Company was joined as defendant No.
2 and the driver of the bus as defendant 3. it was alleged that the accident
causing the death of Lala Wazir Singh, occurred on account of the negligence of
defendants 1 and 3. The bus, it was pleaded, was not in proper order; it was
overloaded with passengers and goods, and despite these facts, defendant 3
drove it at a very high speed while it was negotiating a turn. The liability.
of the employer Company was sought to be fixed on the ground that it was
negligent in employing such a rash and negligent driver and that the accident
occurred when defendant 3 was acting in the course of its employment.
In their written statement presented on July
16, 1956, the Company admitted that the bus involved in the accident belonged
to it and at the time of the accident it was driven by their employee,
defendant 3. In regard to the allegations of negligence, the Company replied:
"The accident alleged by the plaintiffs
was not due to any negligent or careless driving of Harbans Singh Driver of the
vehicle owned by the defendant but was vis major. There was rain on that day
and the front was slippery. The bus overturned and the death of the said Wazir
Chand (Singh) was in no case the result of overturning of the Bus." While
finding that the death of Lala Wazir Singh had occurred on account of injuries
sustained by him in the accident in question, the trial court held that the
accident took place "on account of the r breaking of the tie-rod of the
vehicle due to which the bus went out of the control of the driver". The
tie-rod, according to the trial court, broke because the front left wheel of
the vehicle while it was negotiating a turn, fell into a pit. The court further
held that the. vehicle was not overloaded and its speed at the time of the
accident was not more than 20 or 25 miles per hour, and as such, was not
excessive. On these premises, the trial court concluded that the is plaintiffs
had failed to prove that the accident involving fatal injuries to the deceased,
was due to rash or negligent driving by defendant No.r 3. It further held that
in case Issues 1 and 2, were decided in favour of the plaintiffs, the maximum
damages awardable to them would be Rs. 34,210, i.e., the amount of pension
which the deceased would have earned, had he been alive for 9 years and 2
months after the accident.
181 On these findings, the trial court
dismissed the suit leaving the parties to bear their own costs.
Aggrieved, the plaintiffs preferred an appeal
to the High Court. The Division Bench who heard the appeal, has after
appraising the evidence on record, reversed the findings of the trial court and
held that "the accident was due to negligence attributable to defendant 3
or both defendants 1 and 3".
This finding of negligence recorded by the
High Court is based on facts appearing in the evidence of PWs. 5, 6 and 8 who
were c found by it to be entirely trustworthy.
These facts are: (i) The bus was overloaded
with goods and passengers. There were 60 or .62 passengers including 10 or 12
children, in it (vide PWs 5 and 6). (ii) It was drizzling; the road was wet and
slippery (vide P.s.. S and 6); (iii) The tie-rod of the bus was not found
broken but only "opened" (dismantled) when it was examined by the
expert motor mechanic, PW 8, on the day following the accident. The hand brake
and the foot-brakes were also found in a bad condition; (IV) At the time of the
accident the bus was negotiating a turn and passing through the habitation of
village Cherry; (v) Immediately before the accident the bus was making a zigzag
movement and was being driven at fast speed despite the protests and shouts of
the passengers asking the driver to slow down; (vi) the speed of the bus at the
material time, according to PW 6, was about 30 miles per hour; (vii) The bus
overturned as a result of which Lala Warier Suing died at the spot and other
passengers, including PW S, received serious injuries.
The High Court further reinforced its finding
with an adverse inference against the defendants drawn from the fact that the
driver (defendant 3) who knew best the relevant facts, did not appear in the
witness-stand to explain the circumstances in which the accident occurred. In
this connection it observed:
"Buses do not, in such circumstances,
normally and in the ordinary course, turn turtle. The transaction thus speaks
for itself: in other words res ipsa loquitur and in the absence of explanation
by defendant No. 3 and his employer, defendant No. 1 the established facts and
circa stances accompanying the fatal injury caused to the deceased clearly
raise a presumption or at least permit an inference of negligence on the part
of defendant No. 3 The Court below was thus clearly wrong in negativing
negligence on the part of defendant No. 3.
I would accordingly reverse the conclusion of
the court below on this point and hold that the accident was due to the
negligence of defendant No. 3 and was not inevitable which could not be
obviated by ordinary care, caution and skill on his part." On the above facts
and the premises, the High Court concluded that the accident was due to the
negligence of the driver and was "not inevitable which could not be
obviated by ordinary care, caution u skill on his part". In the result, it
awarded a decree for Rh. 21,600 182 as damages against defendants 1 and 3
proportionate costs, limiting the liability of the Insurance Company, defendant
No. 2 to Rs. 2,000 only, plus proportionate costs.
Hence this appeal.
It is an undisputed fact that Lala Wazir
Singh died in the bus accident on 21.1.1955. It is further common ground that
the bus while negotiating a turn, had overturned causing fatal injuries to the
deceased, and that at the relevant time it was being driven by Harbans Singh
defendant, an employee of the appellant Company. It is also admitted that the
bus belonged to the appellant-company. The only issue in controversy is,
whether the accident involving the death of L. Wazir Singh, was caused due to
the negligence of defendant 1 or both defendants 1 and 3. .
Mr. Mehta, appearing for the appellant
contends that the High Court while conceding that the plaintiffs' witnesses
were not able to assign the reason for the accident, wrongly spelled out
negligence on the part of the driver from the bald circumstance that the bus
had overturned. It is submitted that the High Court committed an error of law
inasmuch as it assumed that the overturning of the bus was res ipsa loquitur
and had shifted the burden on the defendants to show that the accident and the
consequent death of L. Wazir Singh was not due to their negligence. It is
submitted that res ipsa loquitur is merely a Latin phrase and does not convey
any legal principle. Reliance has been placed on this Court's decision in Shyam
Sunder and ors. v.
State of Rajasthan(1). Mr. Mehta further
maintains that the trial court had correctly held on the basis of evidence on
record, that the accident occurred due to the sudden breaking of the tie-rod
and not due to any negligence on the part of the driver. To us, none of these
contentions appears to be well founded.
ordinarily, in Second Appeal it is not
necessary for this Court to reappraise the evidence on record because the first
appellate court is supposed to be the final court of fact. Nevertheless, on the
insistence of the Counsel for the appellant, we have examined the evidence on
the record. We have no hesitation in holding, in agreement with the High Court,
that the evidence rendered by PWs 5, 6 and 8 was reliable and cogent enough to
establish facts which, in their totality, unerringly point to the conclusion
that the accident was due to the negligence of the driver, defendant No. 3.
Kali Ram, PW 5, was one of the passengers in
the ill- fated bus. He, also, received injuries in the accident. For treatment
of his injuries he remained in hospital for twenty days. He was therefore
supposed to have personal knowledge and experience of the circumstances in
which the accident occurred. He testified that the bus was overloaded, and the
driver unheeding the protests and shouts of the passengers to go slow, was
driving it at a fast speed. He further stated now near village Kheri, the
vehicle after making zig- zag movements overturned causing the death of one
passenger at the spot and injuries to the witness and other passengers.
(1) AIR 1974 SC 890.
183 Subedar Ram Kishan, PW 6, is a retired
Army officer and knows motor-driving. His house is just near the place of the
accident. According to his estimate, the speed of the bus, while it was
negotiating the turn, just before the accident, was 30 miles per hour and it
was moving in a zig- zag manner, being not in the control of the driver. In
cross-examination, the witness accepted a suggestion put by the defence, and
stated that in his presence, the driver had told the police that the accident had
occurred due to the breaking of the tie-rod. The witness further conceded that
there was pit by the side of the road, but repelled the suggestion that the
tie-rod could be broken by a sudden jerk at the turning.
Raghbir Singh PW 8 was a motor mechanic. He
examined the bus at the site on the 22nd January. According to him, the tie-rod
had not broken down, but had been opened", implying that it had been
subsequently tampered with. The witness found that the handbrake and
foot-brakes of the vehicle were in a bad condition. He did not find the pipe of
the hydraulic foot-brake in a broken condition.
For its finding that the accident had taken
place on account of the breaking of the tie-rod of the vehicle, the trial court
sought support from the evidence of PW 5 and DW
6. It is manifest that correctly read, the
evidence of PW 6 does not justify that conclusion. The mere fact that sometime
after the accident during police investigation, the driver came out with the
story that the accident occurred due to the breaking of the tie-rod, was no
ground to believe, without demur. that such breaking was the cause of the
accident. The evidence of the expert, DW 6, was dogmatic and worthless. His
opinion was not based on an examination of the vehicle and was rightly rejected
by the High Court.
On the other hand, the testimony of PW 8 who
had examined the vehicle one day after the accident, was quite convincing, and
it could reasonably lead to the conclusion that the tie-rod of the vehicle had
been tampered with an untied sometime after the accident.
The defendants led oral evidence to prove
that near the place of the accident, there was a pit in the road, and when the
bus was negotiating a turn, its front wheel fell in that pit, and as a result
of this fall, the tie-rod end of the steering wheel broke loose and the bus
went out of control.
In the first place, DWs 2 and 3, who were
examined to substantiate this story, did not say that the wheel of the bus had
fallen in that pit. Secondly, the story of this pit and the breaking of the
tie- rod, was not even faintly adumbrated in the written statement. It was
subsequently developed as an after-thought.
Even if it is assumed for the sake of
argument that one wheel of the bus had fallen into the pit, and the resultant
shock broke the tie-rod causing the vehicle to go out of control, then also
that would not, when viewed in the light of the other circumstances of the
case, negative the inference of negligence on the part of defendants 1 and 3.
The pit was according to Gordhan, DW 2,
hardly four feet in 1 3-L390SCI/76 184 length and 6 inches deep. It was not in
the mettled part of the road but in the kacha berm. The bus was negotiating a
turn. There, the road runs through the habitation of a village. lt was
drizzling and the road was wet and slippery.
The speed of the bus at the relevant time,
according to PW 6, was 30 miles per hour, and according to DWs 2, 4 and 5, it
was 25 miles per hour. The bus was overloaded. In these peculiar circumstances,
a duty was cast on the drier lo go dead slow. A speed of 25 to 30 miles per
hour, in these conditions and in this situation, at the turning of the road,
would be imprudently excessive. Had the bus been properly maintained in a sound
road worthy condition, and used with due care and driven with due caution, the
tie-rod should not have broken loose by the fall of the wheel in a pit hardly
six inches deep, particularly when the upward thrust of the water in the pit
would have largely absorbed the shock of the fall. The pit was in the kacha berm
and not right in the mettled portion. The driver could have with ordinary care
and diligence avoided it. Thus, the breaking of the tie-rod-assuming it did
break was at best, a neutral circumstance.
As rightly pointed out by the High Court,
buses in sound road worthy condition, driven with ordinary care, do not
normally over turn. It would be for the driver who had special knowledge of
relevant facts to explain why the vehicle overturned. The maximum res ipsa
loquitur would be attracted to such a case. Defendants 1 and 3 had failed to
rebut the presumption of negligence that arose from the manifest circumstances
of the case. , In Barkway v. South Wales Transport Co. Ltd.('') a motor omnibus
loaded with passengers was passing through a village when the off side front
tyre burst; the omnibus went over to the off-side of the road, mounted the
pavement, crashed into some railings, and fell down an embankment, killing four
of the passengers, including the plaintiff's husband. On these facts, Asquith
L.J. summarised the position as to the onus of proof thus:
"If the defendants' omnibus leave the
road and falls down an embankment, and this without more is proved, then res
ipsa loquitur, there is a presumption that the event is caused by negligence on
the part of the defendants, and the plaintiff succeeds unless the defendants
can rebut this pre sumption, (ii) It is no rebuttal for the defendants to show,
again without more, that the immediate cause of this omnibus leaving the road
is a tyre-burst, since a tyre- burst per se is a neutral even consistent, and
equally consistent, with negligence or due diligence on the part of the
defendants. When a balance has been tilted one way, you cannot redress it by
adding an equal weight to each scale. The depressed scale will remain down.
This is the effect of the decision in Laurie v.
Raglan Building Co. Ltd., where not a
tyre-burst but a skid was involved.
(1) [1948] 2 All E.R. 460.
185 (iii) To displace the presumption, the
defendants must go further and prove (or it must emerge from the evidence as a
whole) either (a) that the burst itself was due to a specific cause which does
not connote negligence on their part but points to its absence as more
probable, or (b) if they can point to no such specific cause, that they used
all reason able care in and about the management of their tyres." The
above observations apply with greater force to the facts of the present case.
Shyam Sunder's case (supra), cited by Mr.
Mehta does not advance his case. There, the radiator of the vehicle was getting
heated frequently and the driver was pouring water therein after every 6 or 7
miles of journey. It took the vehicle 9 hours to cover a distance of 70 miles
and thereafter it suddenly caught fire. On these facts this Court, speaking through
Mathew J., held that there was some defect in the mechanism and the driver was
negligent in putting the vehicle on the road. Since the driver could not
explain the cause of the accident which was within his exclusive knowledge and
it was not possible for the plaintiff to give any evidence as to the cause of
the accident, the maxim res ipsa loquitur was attracted to the case.
Coming back to the instant case, it may be
observed that the driver was admittedly an employee of the appellant- Company,
and at the relevant time he was acting in the course of his employment. The
vehicle was the property of the appellant-Company, under whose management
defendant 3 was working at the material time. It is well settled that where in
an action for negligence the thing causing fatal injury to the deceased and
consequent pecuniary loss to the plaintiff, is shown to be under the management
of the defendant or his servants and the accident is such as in the ordinary
course of events does not happen, if those who have the management use proper
care, that affords reasonable evidence, in the absence of explanation by the
defendants, that the accident arose from want of care.
The appellant-Company was therefore fully
liable for the negligent act of its employee and the injury resulting there from.
No other point has been argued before us.
In the light of all that has been said above,
the appeal fails and is hereby dismissed with costs.
S.R.Appeal dismissed.
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