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Madhya Pradesh High Court
SHIV DAYAL,S. P. BHARGAVA
Kumari Swarnalata Kapoor - Appellant
Versus
Jogendrapal Ramrakha Punjabi - Respondent
Decided On : 04/25/1969
The law is clearly this: (1) Where an omnibus leaves the road and an accident takes place on the off-side and this is proved without more; then the principles of res ipsa locuitur is a once attracted. Negligence will be presumed as the cause of the event. Unless the defendant rebuts this presumption, the plaintiff succeeds. (2) To merely point out what the immediate cause of the bus leaving the road was, e.g., there was a tyre burst or that it went into a skid is by itself no rebuttal of the presumption. (3) To displace the presumption, the defendant must prove, or must show from the evidence; either that the immediate cause was due to a specific cause which does not connote negligence on his part but points to its absence as more probable, or he must show that all reasonable care in and about the management of the vehicle was taken. (4) The burden, in the first instance is on the defendant to disprove his liability. AIR 1962 SC 1, (1948) 2 All ER 460 relied on. [Para 11
(2) Tort - negligence - passenger bus colliding with a tree-spring found broken after the accident-inference-bus for carrying passengers-duty of thorough checking.
The defence was that the accident was caused due to the sudden breakage of a main spring. It may first be seen whether the breaking of the spring was the cause of the accident or was its effect. The function of the springs is to support the body of the vehicle to avoid jerks when it is in motion. It has no connection either with the steering wheel or the brakes. Therefore, it is patent enough that the spring broke as a consequence of the vehicle striking against a tree. [Para 15
But assuming (though not holding) that the spring broke before the impact, the burden was still on the defendants to prove want of negligence. Where it was not shown that the bus struck against any heavy article or obstacle, the only possible cause of the breaking of the spring was that it was worn out due to age. The spring was ten years old and it was not changed. This also would mean negligence. (1920) 37 TLR 72 relied on. [Paras 15 & 17
On this analysis, it must be said that the defendants did not prove that the vehicle had been thoroughly checked up and all that was necessary to do was done, to ensure that the spring would not break, as was required of them having regard to the fact that it was used for carrying passenger. (1963) 1 All ER 705 & (1961) 2 ALL ER 688 distinguished. [Para 21
(3) Tort - negligence - death caused by accident - damages - quantum of - matters to be seen.
In determining the quantum of damages the principles to be followed are (1) The expectations of the life of the deceased has to be estimated having regard to his age, bodily health and the possibility of premature determination of his life by later accidents. (2) Having regard to the amounts which the deceased used to spend on his dependants during his lifetime, and having regard to other circumstances, that amount which is required for future provision of the dependants is to be estimated. (3) The estimated annual sum must be multiplied by the number of years of the estimated span of life of the deceased and that must be balanced by any pecuniary advantage which, from whatever source, comes to the defendants by reason of the death.
(4) The burden is on the plaintiffs to establish the extent of their loss. 1951 AC 601 relied on. [Para 24
SHIV DAYAL, J. :- This is an appeal under Section 96 of the Code of Civil Procedure from the dismissal of the suit in which the appellants claimed damages from the respondents for the death of their parents, resulting from an accident which occurred on February 16, 1959, (prior to the constitution of Claims Tribunal under Section 110-A of the Motor Vehicles Act).
2. On February 16, 1959, motor bus No. M.P.O, 314, belonging to M/s. Patni Transport Ltd. (respondent No. 2), started from Jagdalpur for Jeypore. It was driven by Jogendrapal (respondent No. 1). Rawelchand Kapoor and his wife, Smt. Rajkumari Kapoor, boarded the bus at Jagdalpur. On its way the bus dashed against a tree by the side of the road. Rawelchand Kapoor and his wife received fatal injuries and died instantaneously on the spot. The bus was insured with respondent No. 3, Insurance Co., against third party risk under the terms of the insurance policy Ex. D. 3. These facts are admitted.
3. The accident occurred at 7 or 8 miles from Jagdalpur. The bus was heavily loaded. It went beyond the control of the driver and dashed against a mango tree. The appellants, through their next friend, instituted a suit for recovery of damages on the allegation that the accident occurred due to rash driving, that is, at a great speed beyond the control of the driver, or, alternatively, due to negligence of the driver in not applying brakes and allowing the bus to run astray. It was the duty of defendants 1 and 2 to see that the bus had no defect and was fit for being put on the road before it left for Jeypore. The plaintiffs alleged that their father was running a hotel and was earning Rs. 5,000/- annually. Keeping aside his personal expenses, he spent Rs. 3,000/- annually on the maintenance of the plaintiffs and could have done so for at least 35 years more. At the time of the accident, their father was only 36 years of age and in a healthy state of body. Due to the accident, the plaintiffs lost the protection and care of their parents. Services of a nurse had to be engaged which cost them Rs. 60/- per month for some time at least. The plaintiffs claimed Rs. 25,000/- as damages.
4. The defence was that the accident did not occur due to any rashness or negligence on the part of the driver. It was further pleaded that the accident occurred owing to sudden breakage of the main spring of the bus; and that the bus had been checked up at Jagdalpur and it was found fit before it left for Jeypore. It was, however, admitted that Rawelchand Kapoor and Smt. Rajkumari Kapoor had boarded the bus at Jagdalpur, that both of them were injured in the accident and that they died instantaneously at the spot. The quantum of damages claimed was also disputed. Bar of limitation was pleaded. The maintainability of the suit was also challenged. The Insurance Co., defendant No. 2 (herein respondent 3) contended that its liability was limited to Rs. 2,000/-only.
5. The learned trial Judge found that the suit was maintainable and was not barred because of the constitution of the Claims Tribunal under the Motor Vehicles Act. The accident occurred on February 16, 1959, on which date there was no Claims Tribunal constituted. It is true that before the date of the institution of the suit, though after the accident, a Claims Tribunal had been constituted for Raipur, but the right to sue could not be taken away retrospectively by constitution of a Claims Tribunal. That is what was held in Sushma Mehta v. Central Provinces Transport Services Ltd., AIR 1964 Madh. Pra. 133.
6. The learned trial Judge further held that the suit was within limitation inasmuch as the plaintiffs were entitled to the benefit of Section 6 of the Limitation Act, 1908, which was then in force as all the plaintiffs were minors.
7. On the merits of the case, the Tribunal held that there was no rashness or negligence on the part of the driver of the bus and, therefore, neither the driver nor the owner of the vehicle was liable to pay damage
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