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PETITIONER: MOHAMMED AYNUDDIN @ MIYAM

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT:       28/07/2000

BENCH: R.P.Sethi, K.T.Thomas

JUDGMENT:

     THOMAS, J.

     Leave granted.

     A passenger, while boarding a bus, fell down therefrom as  the  vehicle moved forward.  The driver of the  bus  was held  guilty of culpable negligence in that episode.  He now stands convicted under Section 304A of Indian Penal Code and was  sentenced  to imprisonment for three months.   All  the three  courts,  the trial court, the Sessions Court and  the High  Court  in revision - took the same stand.  Hence  this appeal.   The finding of facts cannot be disturbed now.  The only question which survives for decision is whether on such facts a conclusion that the appellant is guilty of negligent driving must necessarily follow.  The facts which the courts found to have been established in the case are these:

     On  17.12.1993 the appellant was driving a bus of  the Andhra  Pradesh Road Transport Corporation.  A passenger  by name Agamma boarded the bus enroute at some point.  When the bus  moved forward she fell out of the vehicle and its  rear wheel  ran over her.  She died of the injuries sustained  in that accident.

     The  conductor of the bus was examined as PW3.  He did not  say  how the accident happened.  However,  he  admitted that  while  the  bus  was in motion he  heard  a  sound  of accident and the bus was then stopped.  The only witness who spoke  about the occurrence was PW4.  What that witness  has deposed in the examination-in-chief is the following:

     "Agamma  was  boarding the bus and the bus was  moved; and she fell down beneath the bus and died on the spot;  the bus  stopped at some distance.  I saw the driver of the  bus at that time.

     What is the culpable negligence on the part of the bus driver  in the above accident?  A passenger might fall  down from  a  moving vehicle due to one of the following  causes: It  could be accidental;  it could be due to the  negligence of  the passenger himself;  it could be due to the negligent taking off of the bus by the driver.  However, to fasten the liability  with  the driver for negligent driving in such  a situation there should be the evidence that he moved the bus suddenly  before the passenger could get into the vehicle or

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that  the  driver moved the vehicle even before getting  any signal from the rear side.

     A  driver who moves the bus forward can be expected to keep  his  eyes  ahead and possibly on the  sides  also.   A driver  can take the reverse motion when that driver assures himself that the vehicle can safely be taken backward.

     It  is a wrong proposition that for any motor accident negligence of the driver should be presumed.  An accident of such  a  nature as would prima facie show that it cannot  be accounted  to  anything  other than the  negligence  of  the driver of the vehicle may create a presumption and in such a case  the  driver has to explain how the  accident  happened without  negligence on his part.  Merely because a passenger fell down from the bus while boarding the bus no presumption of negligence can be drawn against the driver of the bus.

     The  principle of res ipsa loquitor is only a rule  of evidence  to determine the onus of proof in actions relating to negligence.  The said principle has application only when the  nature of the accident and the attending  circumstances would  reasonably lead to the belief that in the absence  of negligence the accident would not have occurred and that the thing  which  caused injury is shown to have been under  the management and control of the alleged wrong doer.

     A  rash  act  is primarily an over hasty act.   It  is opposed  to  a  deliberate act.  Still a rash act can  be  a deliberate  act  in the sense that it was done  without  due care  and  caution.  Culpable rashness lies in  running  the risk of doing an act with recklessness and with indifference as  to the consequences.  Criminal negligence is the failure to  exercise  duty  with  reasonable  and  proper  care  and precaution  guarding against injury to the public  generally or  to  any individual in particular.  It is the  imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.

     In  the  present case the possible explanation of  the driver is that he was unaware of even the possibility of the accident which happened.  It could be so.  When he moved the vehicle  forward his focus normally would have been  towards what  was ahead of the vehicle.  He is not expected to  move the  vehicle  forward when passengers are in the process  of boarding  the  vehicle.  But when he gets a signal from  the conductor  that the bus can proceed he is expected to  start moving the vehicle.  Here no witness has said, including the conductor,  that the driver moved the vehicle before getting signal  to  move forward.  The evidence in this case is  too scanty to fasten him with criminal negligence.  Some further evidence  is  indispensably  needed  to  presume  that   the passenger  fell down due to the negligence of the driver  of the  bus.   Such further evidence is lacking in  this  case. Therefore,  the  court is disabled from concluding that  the victim  fell  down only because of the negligent driving  of the  bus.   The corollary thereof is that the conviction  of the  appellant  of  the offence is  unsustainable.   In  the result,  we  allow this appeal and set aside the  conviction and sentence and he is acquitted.