Case: Krishna Bus Service Ltd Vs. Smt. Mangli &amp; Ors

an afterthought.22. 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 Nos. 1 and 3. The pit was according to Gordhan, DW 2, hardly four feet in length and 6 inches deep. It was not in the metalled part of the road but in the kacha berm. The bus was negotiating a turn. There, the road runs through the habitation of village. It 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 as 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. Had the bus been properly maintained in a sound roadworthy 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 metalled 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.23. As rightly pointed out by the High Court, buses in sound road-worthy condition, driven with ordinary care, do not normally overturn. It would be for the driver who had special knowledge of the relevant facts to explain why the vehicle overturned. The maxim res ipsa loquitur would be attracted to such a case. Defendants Nos. 1 and 3 had failed to rebut the presumption of negligence that arose from the manifest circumstances of the case.24. In Barkway v. South Wales Transport Co. Ltd ((1948) 2 All ER 460), a motor omnibus loaded with passengers was passing through a village when the offside front tyre burst; the omnibus went over to the offside of the road, mounted the pavement, crashed into some railings, and fell down an embankment, killing four of the passengers, including the plaintiffs husband. On these facts, Asquith, L. J. summarised the position as to the onus of proof thus :"(i) If the defendants omnibus leaves 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 presumption.(ii) It is no rebuttal for the defendants to show, again without more, that the immediate cause of the omnibus leaving the road is a tyre-burst, since a tyre-burst per se is a neutral event 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. ((1942) 46 TLR 1 KBCA), where not a tyre-burst but a skid was involved.(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 cannot 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 reasonable care in and about the management of their tyres."25. The above observations apply with greater force to the facts of the present case.26. Shyam Sunders 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.27. 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 No. 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.28. The appellant company was therefore fully liable for the negligent act of its employee and the injury resulting therefrom.29. No other point has been argued before us.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]27. 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 No. 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.28. The appellant company was therefore fully liable for the negligent act of its employee and the injury resulting therefrom.29. No other point has been argued before us.