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High Court Of Madhya Pradesh
G. P. Singh and S. M. N. Raina, JJ.
SMT.SUSHMA MITRA - Appellant
Versus
MADHYA PRADESH STATE ROAD TRANSPORT CORPORATION - Respondents
First Appeal 106 Of 1970
Decided On : 09/19/1973
It is a matter of common experience that passengers who sit adjoining a widow very often rest their arm on the window-sill by which act the elbow projects outside the window. The driver of the bus must have these passengers also in contemplation and, therefore, while overtaking or crossing another vehicle on the road he must not come too close to the vehicle that is overtaken or crossed and he must leave sufficient gap between the vehicles to avoid injury to these passengers. The driver of a vehicle coming from the opposite direction owes a similar duty while crossing a passenger bus. He too must have in contemplation passengers sitting near the windows of the oncoming bus who may have their hands resting on the windows, and in crossing the bus he must not only avoid contact with the body of the bus but he must also avoid coming in contact with the elbow of any passenger that may be resting on the window and projecting outside the body of the bus. He must, therefore, take precautions to move to his near side and leave sufficient gap for preventing any mishap, 1932 AC 562, 1946 (2) All. ER 333, 1949 AC 155 (HC) referred to. [Paras 7 & 21
(2) Tort - negligence - injury caused by negligence of either of the drivers of the two vehicles - facts in particular knowledge of the drivers not put forth - adverse inference may be drawn against both - Evidence Act, 1872 - S. 114.
When the vehicles came so close while crossing each other as to injure the elbow of the plaintiff, it must be inferred in these circumstances that both the drivers or one of them was guilty of negligence in coming too close while crossing each other. What were the factors that led to the accident were in the special knowledge of the two drivers. The circumstances therefore, call for an explanation from them and if they fail to place the relevant facts before the Court, adverse inference must be drawn against both (1953) 1 WLR 1472 (CA) & (1954) 2 All. ER 131 (CA) referred to. [Paras 10 & 35
(3) Tort - negligence - defence of contributory negligence - failure to take reasonable care must be proved - what is reasonable care - passenger resting elbow on window of bus - is not contributory negligence.
A defence of contributory negligence requires that the defendants must prove that the plaintiff failed to take reasonable care of her own safety which was a contributory factor to the accident which caused her damage.
The defendants’ case on this point is that in resting her arm on the window-sill the plaintiff failed to take reasonable care of her safety and this was a contributory factor to the accident. It is common practice for the passengers who sit near a window to rest their arm on the window. There is no evidence that the passengers are cautioned not to do so. On the roads outside a town the traffic is not heavy and there is ample space for the vehicles to pass each other without coming too close and it is rare for an accident to happen in the manner it has happened in the instant case, There is also no evidence that the truck while crossing the bus blew the horn or that the plaintiffs continued to rest her elbow on the window although she had knowledge that the truck was crossing the bus. Having regard to the speed at which the two vehicles were moving, they must have crossed each other in a split second leaving no time for the plaintiff to withdraw her hand after seeing the truck.
In these circumstances, the plaintiff cannot be said to have failed to take reasonable care of her safety in resting her arm on the window of the bus. After all a reasonable man does not mean a paragon of circumspection" and if most of the passengers behave in the manner the plaintiff did, it would not be right to hold that a reasonable man would have behaved in a different manner. 1958 AC 240, AIR 1960 Punj. 490, ILR (1962) 12 Raj. 128 relied on. 1972 ACJ 385 distinguished. [Paras 13, 24, 25 & 26
(4) Maxims - res ipsa locuitor - applicability of the maxim.
Per Singh, J. - The res must tell a clear and unabiguous story before the maxim res ipsa locuitor is applied and it seems extremely doubtful that the maxim applies to a case of two or more defendants who are not in law responsible for the acts of each other and when negligence of all or any one of them could have caused the accident. Mere happening of the accident in such cases is insufficient evidence against any of the defendants. However, it the defendants are the best persons to know how the accident occurred, negligence may be taken to be established against them by drawing adverse inference if they fail to disclose. But this is not the same thing as res ipsa loquitor. [Para 15
Per Raina, J. - In a case like this the legal maxim res ipsa loquitor can usefully be applied. This doctrine is usually employed in action for injuries due to negligence where patent facts concerning the case are by themselves sufficient to establish negligence. The literal meaning of the maxim is that the things speak for itself. The doctrine does not apply where the cause of accident is known. The res can only speak so as to throw the inference of fault upon the defendants in some cases where the act of the defendant is unexplained. The maxim does not mean that negligence is to be inferred merely because some one is hurt. It means that the circumstances are so to speak eloquent of the negligence of some body which brought about the state of things which are complained of, 1968 JLJ 353 referred to. [Para 30
( 1 ) THIS is an appeal by the plaintiff against the dismissal of her suit for damages for personal injuries sustained in a motor accident.
( 2 ) THE facts that the plaintiff alleged were that on June 12, 1959 she was going in bus No. MPJ 1690 -- belonging to the Madhva Pradesh State Road Transport corporation, from Jabalour to Chhindwara. A truck bearing No. MPJ 9310 owned by Bakhatwarsingh, defendant No. 2. was Coming from the opposite direction-There was a head-on collision between the two vehicles at a distance of about seven miles from Jabalpur. As a result of this impact, the plaintiff received severe injuries to her right elbow causing multiple fractures. It was further pleaded that the injuries have resulted in a permanent disability of the right hand. Both the drivers, according to the case of the plaintiff, were driving the respective vehicles in utter disregard of the rules of driving and without any regard to the safety of passengers. The plaintiff claimed a sum of Rupees 73. 238. 80 as damages against the defendants. The first defendant in the suit is the Madhva Pradesh State Road transport Corporation which is the owner of the bus. The second defendant is bakhatwarsingh who is the owner of the truck. The third defendant Dhaniram was at the relevant time driver of the truck. The fourth defendant is Indian Insurance pools Companies Association which is the insurer of the bus and the fifth defendant is the Northern India Motor Owners Insurance Co. which is the insurer of the truck.
( 3 ) THE defendants 2 and 3, the owner and the driver of the truck, remained ex parte. The fifth defendant, the Northern India Motor Owners Insurance Co. , Which is the insurer of the truck, pleaded that the Plaintiff projected her right elbow outside the bus in which she was travelling and sustained the injuries on account of her own fault knowing well that a vehicle was coming from opposite direction. It was further pleaded that the bus in which she was travelling occupied a major portion of the road keeping more to the right than to the left. The defendant No.
( 4 ) THE insurer of the bus. Paid Rs. 2,000/-to the plaintiff. This is the maximum amount which an insurer of a bus is liable to pay in case of an injury to a passenger travelling in the bus. No defence was, therefore, put forward by defendant No. 4. The defendant No. 1, the Corporation, which is the owner of the bus. denied the plaint allegations and submitted that the plaintiff having settled with the insurer of the bus there was total discharge of liability. 4. The trial Court came to the conclusion that there was no head-on collision between the bus and truck nor any physical contact between the two. It was also held that plaintiff was protruding her elbow from the window of the bus and the elbow was hit by the truck while crossing the bus and this is how the plaintiff received the injuries. In the opinion of the trial Court, the plaintiff herself was negligent in keeping out her elbow and. therefore, she was not entitled to any damages. The trial Court, however, assessed the damages to which the plaintiff would have been entitled had the defendants been guilty of negligence. Special damages were assessed at Rs. 8,238. 70 and general damages were assessed at rs. 15. 000/ -.
( 5 ) LEARNED counsel for the appellant has first argued that the finding of the trial court that there was no collision between the bus and the truck is not correct. He has referred to us the statement of the plaintiff in this connection. The plaintiff did state that the truck collided with the side of the bus, but she further said that she did not see the truck. She also stated that the wind screen of the bus was broken from the impact and pieces of glass struck her hand. She was unable to state as to what other thing hit her hand. She further stated that her hand had fractured and she became slightly unconscious. In her cross-examination the plaintiff stated that she was sitting on the seat
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