In Re: Pachaimuthu Mudaliar

Ramaswami, J.—This Revision arises from the conviction and sentence by the learned District Magistrate of Chingleput in C. C. No. 29 of

1958, in which on appeal in C. A. No. 37 of 1958 the learned Sessions Judge of Chingleput confirmed the conviction but modified the sentence.

The facts are:-On 6th November 1957 at about 7 A.M., the accused was driving a bus from Kancheepuram towards Maduranthakam along the

Manamathi-Pukkathurai Road, near Vedapalayam village. It was then drizzling. P.Ws. 2, 6, 7 and 10 and several others were travelling in the bus.

On the bus getting near a culvert, it hit against the parapet wall and fell into the little lake on its south. P.Ws. 1. 3, 4 and 5 were then standing on

the bridge leaning against the parapet wall, looking at the lake. The bus grazed past P.W. 1 causing an injury on the back of his right ankle and

injuries to P.W. 2 on his right thigh, leg, hip and head. Natesa Thambiran, the deceased was then standing in the lake at the water''s edge. The bus

which dashed against the parapet wall fell over Thambiran, thereby causing his death. His body was carried to some distance. P.Ws. 2, 6, 7 and

10 and several other passengers got injured and P.W. 5 rendered first-aid to the injured passengers and some of the seriously injured were carried

in the bus M. D. H. 1811 by P. W. 11. On the way to the hospital P.W. 11 informed about the accident at the Uthiramerur Police Station. P. W.

14, the Sub Inspector of Police, Uthiramerur, rushed to the spot, recorded a statement from P.W. 1 (Ex. P-1), registered a case under S. 304-A,

I. P. C, held inquest over the dead body of the deceased Thambiran, prepared a rough sketch of the scene of occurrence (Ex. P-23) and had the

important topographical details photographed. He requisitioned the services of the Motor Vehicles Inspector P.W. 15, who inspected the bus on

7th November 1957 at 9 A.M., and prepared the certificate Ex. P-24, giving all the necessary particulars. The injured persons were treated at the

Chingleput Headquarters Hospital and the post-mortem war, held by the Doctor attached to the Local Fund Dispensary, Uthiramerur. The case

for the prosecution spoken to by the prosecution witnesses is that the bus was driven at excessive speed on a zigzag road while the surface was

slippery and wet and the driver deviated from the right side to the wrong side and was not keeping a proper lookout. Therefore, the driver failed to

brake in time with the result that it over-ran the people standing rear the bridge and fell into the lake causing the death of Thambiran.

The case for the accused was that he was driving the vehicle only at a normal speed but that on account of the fact that the drag link rod got

broken at the welded portion, he lost control over the vehicle and the accident was caused.

The learned District Magistrate holding that the prosecution has established the case beyond reasonable doubt convicted the accused under S.

304-A I.P.C., and sentenced him to R. I., for six months and to pay of fine of Rs. 200. He also found the accused guilty under S. 337 I.P.C., but

did not impose a separate sentence therefore ,in view of the provisions of S. 71 I.P.C. On appeal the learned Sessions Judge confirmed the

convictions but modified the sentence of R. I. for six months into three months'' simple imprisonment but maintained the fine. Hence this revision.

The principles of Criminal negligence have been dealt with by me recently in Crl. R. C. No. 872 of 1957 (J. C. May, In re), Crl. R. C. No. 876

of 1957 (Parthasarathy Since reported in 72 L.W. 341.) and in S. A. No. 691 of 1955 (Salem Co-operative Wholesale Stores Ltd., v Gouranmal

and others).

X x x

[After re-stating the position of law as contained in 72 L. W. 341, the learned Judge proceeded.]

* * *

[See also Davids Contractors Ltd. v. Fareham (1956) 2 All E.R. 145. Lord Radcliffe, C.J. and for a detailed discussion-nay critical of this

anthropomorphic conception of Justice, Salmond Jurisprudence 10th Edn. 381, Glanville Williams Criminal Law para 27: Dias and Hughes

jurisprudence p. 208.]

For an exposition of ""negligence"" under the I. P. C. see J. D. Mayne Criminal Law of India Third Edn. 1904 (Higginbothams, Madras) S. 396 p.

616 and Foll: R. A, Nelson The Indian Penal Code Fifth Edn. 1910 (Sweet and Maxwell Ltd.) page 68 and foll; again p. 537 and foll: Dr. Sir Hari

Singh Gour''s the Penal Law of India 6th Edn. (1955) Vol. 2 p. 1389 and Foll: V. B. Raju I.C.S. Penal Code (1957) pages (914-926; Ratanlal

Law of Crimes 16th Edn. 8756 and following Chaudhri Motor Vehicles Act Third Edn. p. 239 and following.

The remarks of Lord Greene M. R. in Laurel v. Raglan Building Co. 1942 1 K. B, 152 p. 154, are apposite:

Despite all that can be said, it is speed that is the great begetter of accidents. It is in respect of speed, pre-eminently that the motor. car is

distinguished from the horse vehicle. But for the speed at which motor cars can travel, the motor-car, which does not pit an independant will

against the will of the driver, should be much safer than a horse vehicle. Yet road accidents have multiplied beyond all reckoning since the motor

car became common. It is the speed of the modern motor car which embroils and confuses the traffic and makes it more difficult to avoid accident,

A person traveling at 40 miles per hour has less chance of avoiding accident than one going at 20 or 30 miles per hour, because the guidance of a

vehicle going at a higher speed calls for rarer qualities of skill and judgment than does the guidance of the slower vehicle. And, more over, the high

speed is more likely to induce confusion and difficulty in other road-users who while possibly less skilled, are not in any way negligent. It is to be

hoped that the Courts will never lend countenance to the utterly fallacious argument of too many motorists that ''speed is not dangerous. It is

dangerous, and in the legal sense it is negligence, in a very great number of cases. True, a clear line cannot be drawn, but the truth of the statement

just made will be obvious if the test of ability to avoid accident by pulling up or swerving be applied. For example, no car driver at 35 miles an hour

can safely be pulled up sharp on a grassy road. No car going at that speed can so safely swerve to avoid collision as one going at 25. It may

swerve more easily, but certainly not so safely, because the driver has far less time to take in his surroundings. It has been plainly laid down, too

that when conditions are such that it is not safe to go at more than a foot pace a driver must go at a foot pace. If even that is unsafe, he must stop.

The question whether speed constitutes negligence has been the subject-matter of much study in the United States of America where

practically every family owns an automobile. 5 American jurisprudence at page 645 et seq, has the following to say :

At common law there is no precise limit of speed. A driver must exercise ordinary care and drive his car at a reasonable rate of speed, and what is

a reasonable rate of speed is dependent upon the circumstances of the case. An excessive speed may, under certain circumstances, constitute

negligence at common law. Some circumstances may require a very slow speed if the charge of negligence is to be avoided. Another fundamental

rule is that in order to impose liability the speed must have been the proximate cause of the Injury Regulation of speed is now quite generally

effected by statute or ordinance...Driving an automobile at a greatly excessive rate of speed in violation of the statutes may constitute an act so

wanton and reckless as to evince an utter disregard for the safety of others, and necessarily to imply an intent to injure, so as to constitute gross

negligence It is asserted as a general rule of law that it is negligence as a matter of law to drive an automobile at such a rate of speed that it cannot

be stopped in time to avoid an obstruction discernible within the driver''s length of vision ahead of him.

Without denying that in many situations and under many conditions a driver of an automobile is as a matter of law guilty of negligence in driving at

such a rate of speed as prevents stopping within time to avoid an obstruction within the range of vision, there is a strong tendency in the recent

cases to refuse to adopt that as a universal formula or a hard and fast rule. Thus, it has been held to have no application in case of emergencies

creating unexpected havards. The rule does not apply to a case where an object or obstruction which the driver has no reason to expect appears

suddenly immediately in front of his automobile.

(a) The question whether speed constitutes negligence has been considered on similar lines by Venkatarama Iyer J. (as he then was) in Gobald

Motor Service Ltd. v. Veluswami (1953) 1 M.L.J. 532.

I have just before mentioned that driving recklessly or dangerously is the result of two mental states viz., (a) negligence and (b) rashness.

Bingham in his Motor Claims Cases, Second Edition, at page 3 (Butter Worth & Co.) 1951 has given the following definitions for negligence

culled out from the standard authorities.

Negligence was defined in all well-known Case of Blyth v. Birmingham Waterworks Co. (1856) 11 Ex. 781; 25 L. J. Ex. 212 : 4 W. R. 294 : 36

Dig. 6 as follows:

Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of

human affairs, would do, or doing something which a prudent and reasonable man would not do. The Law Revision Committee in 1939 (Cmd.

6032) adopted the following definition :

Negligence may be said to consist in a failure to exercise due care in a case in which a duty to take care exists. The general concept of reasonable

foresight is the criterion of negligence and is fluid in its application; it has to be fitted to the facts of the particular case. Lord Wright in Bourhill v.

Young 1943 A. C. 92 at 107.

Negligence is not established by proving that the loss might possibly and with extraordinary foresight and prudence have been avoided. Rothschild

v. Royal Mail Steam Packet Co. (1851) 18 L. T. (O. S.) 334; Hart v. Langs and Yorks Rly Co. (1869) 21 L.T. 261.

If the possibility of danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is

only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary

precautions .Per Lord Dunedin in pardon v. Harcourl-Riyington (1932) 146 L.T. 391.

I am far from saying that every one is entitled to assume, in all circumstances, that other persons will be careful. On the contrary a prudent men will

guard against the possible negligence of others when experience shows such negligence to be common. Per Lord Du Parcq in Grant v. Gun

Shipping Co., (1948) A. C. 519; Both quoted in Upson'', case (1949) 1 All E. R. 60.

There is a duty on the driver of a motor car to observe ordinary care or skill towards persons using the highway whom he could reasonably

foresee as likely to be affected.

Look-out: It is the duty of the driver or rider of a vehicle to keep a good look-out, and disregard of the same is evidence of negligence. When

there are pedestrians about, the driver or rider must be ready in case they step from a street refuge or a footpath, or from behind a vehicle or other

obstruction, and also prepared for children, knowing that they may be expected to run suddenly on to the road. Bandell v. Tarrant (1955) 1 All.

E.R. 600.

When there is a collision in the highway between two motor vehicles and there is no evidence pointing to one driver being more to blame than the

other, the proper inference is that they are both to blame: Baker v. Market Harborough (1953) 1 W.L.R. 1472, France v. Parkinson (1954) 1

W.L.R. 581, Bray v. Palmer (1953) 1 W.L.R. 1455.

Sounding a horn or a bell may be useful to warn other traffic of the approach of a vehicle, but it does not absolve the driver or rider of his duty to

take care or give him the right of way. The omission to sound a horn or a bell is collateral fact only, and not an independent act of negligence; by

itself it is not evidence of negligence, but it may be taken into account, with other circumstances, in determining whether the driver or rider was

negligent. It may also be pointed out that in certain circumstances the sounding of horn may have the opposite result of startling the pedestrian or an

animal and bringing about barging into the vehicle, crossing the road or retracing the steps thus provoking the very danger which is sought to be

avoided: Wintle v. Bristol (1917) 86 L.J.K.B. 240.

Maintenance of Vehicle: The driver or rider of a vehicle is bound incidentally and which has a material bearing on speed also to use reasonable

care to keep it under proper control and this involves a duty to use reasonable care to keep it in proper condition so that proper control can be

exercised. The owner of a vehicle must take steps as a prudent owner would take to keep his vehicle in proper working condition. If he fails to

take such care defects of mechanism etc., e.g., steering wheel getting worn out and by reason of such defect overturning or collision are caused in

the absence of a satisfactory explanation this would constitute culpable negligence: Phillips (1923) 1 K.B. 539, Stennel (1939) 2 All. E.R. 578,

Hutchins v. Maunder (1920) 37 T.L.R. 72, Barkaway (1950) 1 All. E.R. 392.

Duty to use Brakes :-The driver is under a duty of using whatever means are at hand to avoid a threatened collision. The most obvious means

of avoiding the collision is the brakes with which the car must be equipped. By statute a motor car is required to have certain equipment. Elaborate

provisions are made as to the brakes which must be fitted. It will constitute culpable negligence if a driver drives a vehicle with a patently defective

brakes or fails to apply the brakes in time.

To sum up, both as regards civil and criminal liability, the rate of speed which will be considered dangerous varies with the nature, condition

and use of the particular highway and the amounts of traffic which actually is or may be expected to be on it. The driver of a vehicle must drive at a

speed that will permit of his stopping or deflecting his course within the limits of his vision and if he strikes a person or object without seeing that

person or object, he may in the circumstances be placed in the dilemma that either he was not keeping a sufficient lookout or if he was keeping a

lookout he was driving too fast, in view of the lookout that could be kept. It is the duty of the driver to drive his vehicle at a speed which will not

imperil the safety of others using the road.

The Indian cases on negligence in motor accidents which may be studied with profit are: Lazarus 1953 All. 72, Kunsi Ram 1927 Lah. 165, Sat

Narain 1933 All. 252, Chisa 1951. Ajmere 45, Chimanlal 1954 All. 186, Datram 145 I.C. Mad. 573, Collete 1929 M.W.N. 395, Aliuddin 1944

Nag. 242, Chothy Lall 1945 All. 16, Jummau 1944 Nag. 235, Subba Rao 1953 Hyd, 122 Jahur Mia v. The State AIR 1954 Ass 169=55 Cr.

L.J. 1297, Bharosi AIR 1957 Madh. Pra. 236, Govt, of Madh-Pradesh B. Kumar AIR 1958 Madh. Pra. 205. Bearing these principles in mind if

we examine the facts of this case, we find that the accused has been clearly guilty of the offence under S. 304-A I.P.C., and it was his gross

negligence in driving the vehicle at an excessive speed over a wet and zigzag road, deviating from the right side of the road to the wrong side and

not keeping a proper lookout and putting himself in a position as not to be able to apply the brake in time, that was responsible for the offence

committed by him. The plea put forward by him that the accident was due to the drag link rod getting broken at the welded portion has been rightly

found to be wholly false. There can be no doubt that the drag link rod broke after the bus fell into the Jake. The conviction of the accused under S.

304-A I.P.C., is correct. Having regard to the fact that this gross negligence on the part of the accused has brought about the death of one person

and serious injuries to others, the punishment, as modified by the learned Sessions Judge errs on the side of too much leniency and deserves no

interference. The convictions and sentences are confirmed and this Revision Petition is dismissed.