Shrimati Mangli and Others vs The Krishna Bus Service Ltd., Delhi, and Others

Dua and R.S. Narula, JJ.—This is the plaintiffs'' first appeal from the judgment and decree of a learned Subordinate Judge 1st Class, Sonepat, dated 4th April, 1957 dismissing their suit for recovery of Rs. 50,000 as damages against three defendants. The Krishna Bus Service Co. Ltd., The Jupiter General Insurance Co. Ltd., and Shri Harbans Singh.

The facts briefly stated which have led to the present litigation are that Wazir Singh, I.R.S.E., a retired Divisional Engineer Railway, and a resident of Hissar, was travelling as a passenger in a motor vehicle belonging to defendant No. 1 going from Delei to Hissar on 21st January, 1955. This vehicle went out of order on the way at some distance from Delhi. Wazir Singh was then transferred to another motor vehicle bearing No. D.L.B. 5749 also belonging to the Krishna Bus Service Limited, defendant No. 1, which was being driven by Harbans Singh, defendant No. 3, an employee of defendant No. 1 acting under his employer''s direction and instructions. When the vehicle No. D.L.B. 5749 reached near village Kheri Sadh, a few miles from Rohtak at about 3 p.m. on 21st January 1955, the bus overturned causing fatal injuries to Wazir Singh resulting in his instantaneous death. According to the allegations contained in the plaint, the bus overturned because of the rash and negligent driving by defendant No. 3. The bus, according to the averments, was not in proper order and was also overloaded with passengers and goods and, in addition, it was being driven at a very high speed. Even when negotiating curves, defendant No. 3 used to continue driving at high speed. It has further been averred that defendant No. 3 was also challenged for rash and negligent driving and for causing the death of Wazir Singh deceased by a rash and negligent act and convicted u/s 304, Indian Penal Code. The vehicle in question, according to the plaint, was insured, the insurance policy being operative on the date of the accident. For this reason, defendant No. 2, the Jupiter General Insurance Company Limited has been sought to be held liable for the payment of damages. The deceased, according to the plaintiffs, possessed robust health and was aged about sixty years expecting to live for a least twenty-five years more. He was during his lifetime serving as office-holder of several institutions of public importance. His annual income, according to the plaint, was Rs. 6,772/- including a pension of Rs. 3,734/-. The plaintiffs claiming, as representatives of the deceased instituted the suit, out of which this appeal has arisen, in December 1955; plaintiff No. 1 being the widow of the deceased and plaintiffs Nos. 2 to 20 being his children and grandchildren. Plaintiff No. 5, Devindra Kishan, according to the plaint, wis studying law at the time of his father''s death and the expenses of his education and maintenance amounting to about Rs. 150/- per month were being wholly met by the deceased. Plaintiffs 6 to 8 are the daughters of the deceased and plaintiffs 9 to 20 his grandchildren.

In the written statement filed by the Krishna Bus Service Limited, defendant No. 1, it has been admitted that Harbans Singh, defendant No. 3, was driving bus No. D.L.B. 5749 belonging to the answering defendant. The averment that another motor vehicle, in which the deceased was travelling, belonged to defendant No. 1 and had gone out of order on the way from Delhi to Hissar has been denied and it has been averred that the deceased was not a bona fide passanger of bus No, D.L.B. 5749. The assertion that the said bus overturned has been admitted but it has been denied that the injuries caused to the deceased were as a result of the bus having overturned, or that his death was due to overturning of the bus. Rash and negligent drawing on the part of defendant No. 3 has been denied and it has been asserted, to quote the exact words, that -

The bus overturned due to rains and the road becoming popery.

The bus. according to this written statement, was driven at a moderate speed. The allegation of the bus not being in proper order and that it was overloaded with passengers and goods has also been denied. In regard to the driver''s conviction, it has been pleaded that he was acquitted on appeal from the Court of Session. In the additional pleas, it has again been emphasised that 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. It has been repeated that there was rain on that day and the road was slippery. The bus overturned and the death of Wazir Singh was in no case the result of the overturning of the bus. This written statement has been verified by Dalip Singh, Managing Director of defendant No. 1, who has verified the main facts to be correct to the best of his knowledge and belief. Defendant No. 3 does not appear to have filed any written statement. From the record the written statement of the Insurance Company is not traceable and it appears that it is not included in the index of the trial Court. Plaintiffs'' replication to the written statement of the said Company is, however, printed in the paper-book, but it is unnecessary for our purposes to make any reference to its contents. It may be pointed out that on 10th August 1956, Shri Mahabir Pershad, Advocate for defendant No. 1, gave up the plea of the deceased not being a bona fide passenger in the bus in question. One further fact, which may also be noticed, is that on 2nd August, 1956, the Court had ordered the defendants to appear personally on 10th August, 1956, to make statements and if they could not appear, they should send instructions to their counsel. It was apparently in pursuance of this direction that Shri Mahabir Pershad made the above statement on 10th August, 1956. Defendant No. 3, it is noteworthy, remained absent throughout.

The pleadings of the parties gave rise to the following issues:

Did the death of the deceased Wazir Singh occurred on account of rash and negligent driving by Harbans Singh defendant No. 3 ?

2 Did the accident occurred on account of overload and for not being in proper order ?

If issues Nos. 1 and 2 are found against the plaintiffs can the plaintiffs still maintain the suit ?

If issues Nos. 1, 2 and 3 are found in favour of the plaintiffs, to what damages are the plaintiffs entitled and against whom ?

The learned Subordinate Judge discussed issues Nos. 1 and 2 together and came to the conclusion that the accident had not taken place due to the rash or negligent act of the driver, but was vis major, and further that the bus had not overturned due to overloading etc., as alleged. The plaintiffs were held not to have shown that they were entitled to maintain the suit if issues Nos. 1 and 2 were decided against them. Under issue No. 4, the Court came to the conclusion that the deceased would have earned a pension of Rs. 34,210/- during the remaining nine years and two months for which he would have lived according to the evidence of Hardit Singh, D. W. I, Officer-Incharge, Oriental Insurance Company. There was, according to the Court below, no evidence to show the income of the deceased from different companies of which he was stated to be a director. In the final result, the suit was dismissed.

On appeal in this Court the learned counsel for the appellants, has very seriously challenged the conclusions of the Court below on the first two issues and has contended that the evidence on the record clearly establishes rash and negligent conduct on the part of Harbans Singh driver, defendant No. 3, and that the accident occurred on account of overload and because of the bus not being in proper order. We have been taken through the evidence on the record and the counsel has submitted forcefully that Kali Ram, P. W. 5, who was also travelling in the unfortunate bus on the fateful day and Subedar Ram Kishan, P. W. 6, who was standing near the place of the occurrence at the time of the accident, have deposed about the accident in a very fair and frank manner and their testimony quite clearly establishes facts which, unexplained as they stand, give rise to a natural and reasonable inference of negligence attributable to defendant No. 3 or to both defendants Nos. 1 and 3. According to P. W. 5, this bus had taken over the load of the first bus which had gone out of order at village Kalawar, although it had already a sufficient number of passengers in it. Though it was drizzling, the driver drove the bus at a fast speed and that to in spite of the passengers asking him not to do so. Before overturning the bus made a sort of a zig zag movement and the witness was also injured as a result of the accident, remaining in the hospital for nearly 20 days. Two passengers injured by the accident died at Rohtak subsequently, In his cross-examination, nothing cogent has been elicited which would in any way discredit his testimony on material points. P. W. 6 was standing near the road when the bus in question came from Delhi side on its way towards Rohtak. The bus immediately before the accident was moving in a zig zag manner and was out of the driver''s control. One person died on the spot and another was also seriously injured. The witness attended to the injuries on some of the injured persons. In cross-examination, it has been elicited from this witness that near the curve on the road, there was a pit about 11/2 feet deep and three feet long on the left side of the road. There was also a stack of bricks about 15 feet from the edge of the road. The bus passed over one or two bricks lying near the pit when it overturned on account of its collision with the stack of bricks. He clarified in his cross-examination that the person, who, according to him, had died on the spot was an Executive Engineer and he explained that the said Executive Engineer may have died immediately or some time after he was taken to the hospital. On cross-examination by defendant No. 2, this witness stated that the pit had been created on account of traffic of the lorries and was there from a sufficiently long time. Raghbir Singh, P. W. 8 has deposed that the tiered of the bus in question was not broken, though it had been opened. The hand brakes and foot brake were in a bad condition and the pipe of the hydraulic foot brake was in a broken condition. The witness could not say if the pipe had been broken as a result of the accident or it had been broken previously. In cross-examination, he said that the hand brakes were not in working order and the tie rods had not been broken as a result of the slippery road. The witness had examined the bus on 22nd January 1965 at about 12 A. M. Gordhan Dass, D. W. 2, a book-seller has appeared in defence. He claims to have been travelling from Delhi to Hansi in a marriage party on 21st January 1955. They were about 20 members. On the way, according to him, two passengers entered this bus, one of whom was a fat man. They had. according to the witness, come to this bus from another one, suggesting thereby that the other bus was the one which, according to the plaintiff''s witnesses, had gone out of order. According to this witness, no other person from that other bus came to this one. He also admits that it was drizzling at that time and the road had become slightly muddy. At the place where the bus turned turtle, there were bricks and a pit. The people from the village nearby came to the spot and they lifted the bus and put it straight. The witness also was in a way buried underneath the bus and was helped out by the people. His children were also with him. In cross-examination, the witness has stated that the pit was about 2 feet long nd 6 inches deep just adjacent to the metalled road. The witness could not give the width of the metalled road on the place of the accident. The bus turned turtle on its left side about 25 or 30 feet from the pit. The bricks were lying near the road and the bus, according to him, turned on the bricks. The witness did not notice if Shri Wazir Singh had received any injuries nor did he see anybody removing him because, as he puts it, he was busy with his own children and luggage. He is unable to give the exact number of passengers in the bus because, as he puts it, people used to get down at places on the way and new people used to enter the bus. The testimony of this witness is far from impressive when he says that he did not see Shri Wazir Singh being injured or being removed and it clearly demonstrates the interested nature of his deposition. In regard to pit and bricks etc. he did not find it possible to suppress the actual facts. I am unable to place reliance on him when he says that only two passengers entered this bus near Sampla when the late Wazir Singh came on to it. Marain Dass, D W. 3, has also supported the plaintiff''s version about there being a pit and a bend on the road and also of there being stray bricks lying near. He repeats what Gordhan Dass has said that only two passengers entered the bus near the village Kahwar where the other bus had failed. The witness would have us believe that he did not see how many passengers were there in the bus which had failed; a statement which appears to me to be somewhat unnatural. This witness has admitted that two persons died as a result of the accident, one of them being an occupant of the front seat. Khushal Chand. D.W. 4 also states to have been travelling in the bus which met with the accident. While negotiating the bend one of the left wheels of the bus got into the pit and at a distance of about 20 feet, it turned turtle. The pit, according to this witness, was full of water and it could not be seen as to how deep it was.. After the accident, the driver ran away to Sample and, therefore, he did not open the engine in the presence of the witness, nor did he make any repairs. The conductor of the bus, it is stated, remained with the passengers when the driver left for Sampla. However, no request was made to the witness either by the conductor or by the driver to make any note in the complaint book, but he made a note of his own accord. Curiously enough, he did not care to inform the police that he had made any note in the complaint book. I may here notice the note which this witness proved in his examination-in-chief. It is marked as Exhibit D. 1 and is in the following words:

The following persons were sitting on the front seat and the second seats. When the driver turned the vehicle at the curve of the road near village Sadh Kheri, it was 2-45 P.M. When the driver turned the vehicle, the (front) wheels remained in the turned direction. We think some part of the vehicle might have loosened,on account of which the vehicle went out of control of the driver. The driver did his best to bring the vehicle in control. The vehicle was going at a speed of 25 miles per hour. The No. of the vehicle is DLB 5749.

This is signed by Harish Chander Malk and also by Khushal Chand and is dated 21st January, 1955. The language of this document as well as the circumstances attending its coming into existence eloquently speak of its inspired nature. Harish Chander has appeared as D.W. 5 and his evidence also does not very much help the defendants, though he too would have us believe that only two passengers of the bus which had gone out of order entered the present bus. It is noteworthy that this witness has in his cross-examination deposed that the driver had asked them to write down whatever they had seen and they made a note about the actual facts in the complaint-book. Contrasting this statement with that of Khushal Chand, D.W. 4, it is obvious that this note has been created for the purpose of defence and Khushal Chand had told obvious lie when he said that no one had asked him to make the note. It is also significant that it was as not noted in the complaint-book that the bus had turned turtle. This witness''s statement was not. recorded by the police, nor was he produced in the Criminal Court, though he does depose about the arrival of the police on the spot. G. S. Dhaneshwar has appeared as D.W. 6 and has given his opinion that if one of the wheels goes into a pit which is two feet or 21/2 feet deep and then goes over stray bricks, there is a possibility of tie-rod ends breaking. This statement does not seem to be of much assistance in the case in hand. In cross-examination however, this witness has stated that if the bus is in a fairly high speed after the breaking of the tie-rod, it may turn turtle, but if the speed is not high, then there is a possibility of the car or bus going out of order, striking a tree or falling into a khud. If the weight is more, then there will be more momentum and the bus is likely to turn turtle. The testimony of this witness, in general terms-as it is -is of no value. Dalip Singh has appeared as D. W. 7 but his assertion that the bus was not overloaded is meaningless because he was not in the bus in dispute. The fact that it was not overloaded when the bus left Delhi is wholly inconclusive. The bus was in his possession and so were the tie-rods. The witness has deposed that the tie-rod was replaced because the one that was fixed in the bus had broken at the end and though the bill was with the defendant it was not produced.

This is the material evidence led in the case. The learned Subordinate Judge has come to the conclusion that the accident had taken place on account of the breaking of the period of the vehicle due to which the bus went out of control of the driver. This finding is based on the testimony of P.W.6 and D.W.6. I do not think the testimony of P. W.6 leads to this conclusion, and the testimony of D.W.6 also dees not justify the conclusion that the accident of the bus in question was Inevitable, having occurred because of the breaking of the tie rods. I am also unable to sustain the opinion of the Court below that the driver had not tampered with the tie-rods.

Here, I may reproduce the opinion of the Court below in its own words-

Certain facts, which are disclosed from the statements of these P.Ws and DWs. might be taken to have occurred, and there can be no contradiction to the same. These are that the deceased was travelling in another bus of the defendant No. 1 and was going from Delhi to Hissar; that that bus went out of order at Kehrawar, another village on Delhi-Hissar Road; that the deceased, on his own request, was accommodated in the unfortunate bus; that the accident took place when negotiating the left-ward bend in the middle of the village Kheri Sadh; that at that time, the left wheel of the bus passed over a pit full of water, measuring 2''/3'' x 6"xl1/2 at the edge of the road, and a few scattered bricks, lying close to that pit; that this pit had been formed due to the collection of village water and the passing of vehicles over that site; that this bus turned turtle after covering a distance of 20 feet of Kutcha road and striking a stack of other bricks.

Assuming, as the Court below thinks, that the plaintiffs'' witnesses are not able to assign the reason for the accident; the best person to tell the Court would be the driver, defendant No. 3, himself. Having personal knowledge of the circumstances in which the accident occurred, as also of the condition of the bus and his own testimony being the best evidence, his omission or failure to appear as a witness must go not only against him, but also against defendant No. 1, giving rise to a strong adverse inference against them, there being no convincing and reasonable explanation as to why he could not be produced as a witness in support of the defendant''s plea. If the real cause of the accident is not known, then one has to keep in view the fact that motor buses do not normally and in the ordinary course overturn without some cause. The small pit with some water in it, even though coupled with slight drizzle and wet road will not in the normal course overturn the bus, when it is being driven with ordinary care and without negligence. The inference of negligence appears to be clear in the present case from the nature of the accident itself because it is not possible to say that the probability of the accident being due to the negligence is lesser than that it is not so due. The res speaks because the facts stand unexplained and, therefore, the natural and reasonable, not conjectural, inference from the facts shows that what has happened is reasonably to be attributed to some act of negligence on the part of somebody; that is some want of reasonable care which the circumstances demanded. It is indisputable that the driver, defendant No. 3, in the course of employment of defendant No. 1, was in control and management of the bus at the time when by turning turtle it caused the fatal injury to the deceased. 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 circumstances accompanying the fatal injury caused to the decased clearly raise a presumption or at least permit an inference of neglience on the part of defendant No. 3. The Court below was thus clearly wrong in negativing neglience on the part of defendant No 3; and the judgment under appeal betrays an erroneous approach and ignorance both of the doctrine of res ipsa loquitur and of the recognised rules that a party, which has personal knowledge of the relevant facts, should depose about them and that best evidence should be produced in proof of relevant facts. 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.

Assuming there was some defect in the bus, that too should have been explained by defendant No 3; and in any case it was the duty of both defendant No. 3 and defendant No. 1 to see before putting the bus on the road for the journey in question that it was roadworthy and free from such defects as would make it risky to travel on the road and in the circumstances in question. This duty these defendants owed under the law to the travelling public. They have not cared to enlighten the Court as to what steps they had taken in this direction and how the accident could be considered to be inevitable in spite of exercise of ordinary care on their part. The submission of Shri P.C. Jain, learned counsel for defendant No. 1, that the plaintiffs have to establish affirmatively the cause of the accident to be the negligence of his driver, defendant No. 3, is, on the facts and circumstances of this case, merely to be stated to be rejected. The judgment under appeal was not sought to be supported on any other ground before us.

The law applicable to such cases appears to me to be fairly settled and is no longer in doubt. It is, therefore, unnecessary to comment in detail on the decided cases cited on behalf of the appellants. I would merely note them, in fairness to the learned counsel -

Baijnath Shaw v. Corporation of Calcutta AIR 1933 Cal l78 Madhuri Chaudhuri and Others Vs. Indian Airlines Corporation, , Parmeshwari Dass v. Shrimati Soman Devi (1960) 62 P.L.R. 314, The State of Punjab v. Shrimati Guran Wanti (1960) 62 P.L.R. 571, Shri Ram Partap v. General Manager, Punjab Roadways (1962) 64 P.L.R. 448, Gobald Motor Service Limited v. R.M.K. Velusami AIR I953 Mad 981, Laurie v. Raglan Building Company Limited (1941) 3 A.E.R. 332, Radley v. London Passenger Transport Boad (1942) 1 A.E.R. 433, Western Scottish Motor Traction Company Limited v. Allan (1943) 2 A.E.R. 742, and Scott v London and Saint Katherine Docks Company (1861) A.F.R. Rep. 246.

Coming to the question of damages to which the plaintiffs might be entitled, after going through the evidence we are of the opinion that the age of the deceased at the time of the accident should be fixed at sixty-five years and the only item on the basis of which we can determine the damages is the pension which could be received by him. In regard to the other items, there does not seem to be clear-cut positive evidence showing the exact income. The Court below has, while calculating the amount of pension, arrived at the conclusion that the deceased should be deemed to have lived for nine years and two months if he had not met with the accident and during this period he would have earned a pension of Rs. 34,210/- because he was drawing Rs. 311/- per month. Out of this amount, I think a certain amount should be deducted for his own expenses. However, after considering the entire matter and also giving some concession for some other income which he may possibly have been earning from various companies as director, we are inclined to think that a sum of Rs. 21,600/- might well be considered to be a fair figure, which should be allowed to the plaintiffs by way of damages on account of this accident. Indeed, at the bar also there was no serious dispute about this figure.

In so far as the liability of the Insurance Company, defendant No. 2, is concerned, from the insurance policy it is quite clear that its liability is limited to Rs. 2,000/- and, indeed, after hearing Shri S.K. Jain, learned counsel for the Insurance Company, on this point, there was no dispute at the bar.

In the result, we reverse the judgment and decree of the Court below and instead pass a decree for Rs. 21,600/- in favour of the plaintiffs appellants against defendants Nos. 1 and 3 with proportionate costs in both the Courts. The liability of the Insurance Company, defendant No. 2, would be limited to a sum of Rs. 2,000/- only plus proportionate costs.