The driver of a motor vehicle owes a duty of care to other road users, but this duty is not absolute and may be discharged by taking reasonable care to avoid causing harm.

( 1 ) THIS is a suit raised on August 22, 1953, by Sukhraji Bhuj or Bhunj (hereafter referred to, so far as possible, as Sukhraji) claiming Rs. 10,000 from the Calcutta State Transport Corporation, the sole defendant, for the pecuniary loss sustained by her for the death of her 14 year old son, Ramdeo, on his having been knocked down on June 23, 1952, at 2-30 p. m. or thereabouts along the eastern side of Government Place East by a motor omnibus WBS 345 of the defendant Corporation driven negligently.

( 2 ) A suit as this is resisted on the plea that the deceased Ramdeo jumped off a running tram-car, proceeding north to south, came in contact with the right rear wheel of the omnibus, also going north to south parallel to the tram-car, and thereby sustained the fatal injuries caused entirely by his own negligence. More, the point where he jumped so a little south of the junction of Waterloo street and Government Place East had no tram-stop. Nor did he care to look to the traffic coming From behind.

( 3 ) THE issues struck at the trial are:1. Was the driver of the omnibus bearing No. WBS 345 negligent on June 23, 1952 at or about 2-30 p. m. in the manner alleged in the 2nd paragraph of the plaint; or was the accident complained of caused entirely due to the negligence of the deceased, Ramdeo Bhuj, in jumping from a running tram-car at a place where there was no tram-stop and without looking at and paying heed to the traffic coming from behind, as alleged in the 2nd paragraph of the written statement? 2. Can the loss of the plaintiff be assessed at Rs. 10,000 as claimed? 3. What reliefs, if any, is the plaintiff entitled to?

( 4 ) ON August 22, 1953, when the suit was instituted, the defendant Corporation had not come into being. But the State of West Bengal was there, owning the omnibus complained against and running the Transport Service in Calcutta So the State was sued as such. But after the Road Transport Corporation (West Bengal Amendment) Act, 28 of 1959, the defendant Corporation, then in existence, stood substituted by law in place of the State; vide Section 3 ibid inserting Section 47b In the Central Act, 64 of 1950: the Road Transport Corporation Act. By way of abundant caution, there has been substitution in fact too. There is therefore no difficulty that way. No difficulty is raised either at the Bar. Indeed, Mr. Chatterjee, opening the case for Sukhraji, has drawn my attention to the provisions just mentioned.

( 5 ) THE real difficulty for the unfortunate mother, Sukhraji, bereft of her son, Ramdeo, who was working then as an office-boy under Messrs. Karamchand Thapar and Brothers Ltd. on Rs. 70 a month, lies in merits of her case. And this brings me to the first issue.

( 6 ) THE onus of proving negligence is on Sukhraji as Mr. Sen appearing for the defendant Corporation rightly contends. That indeed is the ordinary rule in running down actions. It is therefore for Sukhraji to give affirmative proof of negligence on the part of the defendant Corporation's servant, the driver of the omnibus.

( 7 ) SUKHRAJI examines two witnesses and closes her case. One is Santosh Kumar Datta who has been working as a care-taker under Messrs Karamchand Thapar and Brothers Ltd. The other is the deceased man's full brother and necessarily Sukhraji's another son, Raja Ram, who knows nothing about the accident on June 23. 1952. He was not then there. So his evidence does not count, Santosh who was there right on the scene and just at the time of the heartrending occurrence, should have known a lot. But he too knows little: q. 41. Ct. Did you or did you not see the actual impact between the bus and the unfortunate boy? / No. I did not, my Lord. If such a one having so great an opportunity to become an excellent eye witness, had not seen the actual impact, it means that Sukhraji fails to give affirmative proof by direct evidence of negligence on the part of the driver of the vehicle. And the Court is deprived of