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PETITIONER: KRISHNA BUS SERVICE LTD.

       Vs.

RESPONDENT: SMT. MANGLI & ORS.

DATE OF JUDGMENT21/01/1976

BENCH: SARKARIA, RANJIT SINGH BENCH: 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

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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

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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]

JUDGMENT:      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:

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         "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

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    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

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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

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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

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    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. 186