Judgment Case ID: 3409

Judgment:
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. section 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. vs 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) ; 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 vs 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 vs Raglan Building Co. Ltd.	 where not a tyre burst but a skid was involved. (1) 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 therefrom. 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.

Summary:
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 vs State of Rajasthan	 A.I.R. 	 not applicable. Barkway vs 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 therefrom. [185 D F]