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High Court Of Madhya Pradesh
A.P. Sen and G.G. Sohani, JJ.
Sushila Devi
Versus
Ibrahim
Miscellaneous Appeal 65 of 1968 Of
Decided On : Dec 04,1973
The test in ascertaining whether the doctrine of res ipsa loquitor applies is this. There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care. (1861-73) All ER Rep. 246, (1969) 2 All. ER 1257 & (1969) 2 All ER 53 relied on. [Para 9
The cause of accident, on facts of the case, remains unexplained. The fact, however, remains that the bus violently swerved to the right. This is a case where the doctrine res ipsa loquitor must necessarily apply since the cause of the accident is not known. The maxim raises an inference of negligence which the respondent has not succeeded in rebutting. [Para 12
When a motor vehicle suddenly leaves the road, mounts the pavement or crashes against an off-side tree, or falls down an embankment and meets with an accident resulting in death, the fact that it went off the road is, without more per se proof of negligence. (1969) 3 All ER 756 relied on. 1970 JLJ 626 distinguished. [Para 18
(2) Motor Vehicles Act, 1939 - S. 110-B - damages - death caused by negligent driving of a bus - principles for awarding damages.
The principles governing award of damages for death are well-settled and may be briefly stated here:--
(i) When the Court awards damages to the defendants for death due to negligence, it awards one lump-sum calculated by taking the yearly pecuniary loss and multiplying it by the number of years' purchase.
(ii) It does not divide it into two pasts, such as special damage upto the date of trial and future loss after the date of trial. The Court treats it as damage inflicted once and for all at the time of accident.
(iii) It has to follow the rule of basic figure, a certain number of years' purchase, and allowance for lump-sum down.
(iv) If the period is a long one, the 'multiplier' will be much smaller than the number of years, even where the contingencies which are allowed for are of small account. The reason is that while in so far as the lump-sum of damage is still unspent, it will be earning interest 2nd the damages and interest together will be adequate to last out for the period. The reason is that a prudent person receiving a lump-sum, to make good his loss over a period, is expected to invest it and to use it up gradually.
(v) The sum to be awarded as damages should be equal to the cost of purchasing an annuity of the relevant amount for the relevant period. 1971 JLJ 203 & AIR 1971 SC 1624 relied on. [Para 23
Under the present law, in assessing damages under the Motor Vehicles Act, 1939, as it stands, the Court has to, as it must, set off against the probable loss which the dependant has suffered, any pecuniary advantage which he has received from any source, as a result of the death such as pension, whether contributory or non-contributory, insurance or gratuity. (1888) 13 AC 800, (1861-73) All ER 180 & (1922) 1 K.B. 361 referred to. AIR 1973 Guj 216 dissented from. [Para 29
To sum up, in a claim for damages for death under section 110-B of the Motor Vehicles Act, 1939, as it now stands sums payable on death under any contract of social assurance or insurance are to be disregarded, but the reasonable prospects of receiving benefits such as compulsory employers' insurance, whether contributory or non-contributory, gratuity and pension have to be taken into account. [Para 32
( 1. ) THESE appeals under Section 110-D of the Motor Vehicles Act, 1939, preferred by two sets of claimants, are directed against the decision of the Motor Accident claims Tribunal. Indore, rejecting their claim for compensation for the death of two of the passengers, Jinendra Kumar and Basantilal, arising from ,a motor accident.
( 2. ) THE material facts, shortly stated, are as follows:-On the 13th February, 1965, there was a ghastly accident on the mortakka Bridge over the Narbada resulting in the tragic death of eight persons. It is as very large bridge, having a length of 2600 ft. with twenty-four spans each of 108 ft. Motor bus No. MPB 1492, owned by respondent No. 1 Ibrahim and driven by deceased Lal Khan, was carrying eight passengers en route Ujjain-Onkare-shwar via Indore. The bus entered the bridge near about 11-30 A. M. , and after it had crossed as many as twenty-one spans of the bridge, the driver suddenly applied the brakes; but the bus went forward with a jerk, suddenly veered across the bridge to the off side, dashed against two or three railings, crashed through the railings, and fell down off the bridge from a height of about 50 ft. into the rocky bed of the river, resulting in the death of the driver and seven passengers including Jinendra Kumar and basantilal. The sole survivor was one of the passengers, A. W. 3 Sajjan singh, who had a miraculous escape.
( 3. ) THE first set of claimants, Smt. Sushila Devi and others, the heirs of Jinendra kumar, alleged that the accident was caused by negligence on the part of the driver. In support of that plea, they gave the following particulars of negligence:
"after the bus actually entered the bridge and was crossing the Narbada river and was nearing the southern end of the bridge, it suddenly ran into the railings on the right-hand side of the bridge and crashing through the same fell into the rocky bed of the river about 45 feet below. "
The second set of claimants, Smt. Kamalabai and others, however, alleged that the accident occurred due to the negligence of the owner of the bus, i. e. , respondent No. 1. The particulars of negligence pleaded by them were these: "at the time when the sad and horrible accident took place, the condition of the said bus was also not in perfect order. The bus was moving then without a conductor ,at the time of the accident. The axle of the bus was also not in order. It is learned by the applicants that the axle was broken on the Narmada River bridge and due to this, bus could not be controlled and ultimately it fell down. "
( 4. )
"in answer to their claim the respondent Ibrahim in his written statement denied that the accident was caused due to any negligence on his part or on the part of the driver. In his defence he asserted that the accident was caused by a sudden mechanical failure. That plea was in these terms:-" the accident occurred as the axle was broken and due to breakage of the right pin and tie-rod of the driver side and as such the connection between the steering wheel and the front wheel disconnected and the vehicle became out of control. This being Vis Major, the owner is not liable for compensation. "
( 5. )
"the Claims Tribunal held that this was purely an accident caused due to a sudden dislocation of the tie-rod during the course of the journey, resulting in a disconnection of the steering wheel and the front wheel. While deal- ing with the question whether the claimants could rely on the doctrine res ipsa loquitur, the tribunal observed following the dictum of Lord Simon in Woods v. Duncan, (1946)1 All ER 420, that res ipsa loquitur only shifts the onus of proof which is adequately met by showing that the defendant was not, in fact, negligent. It accepted the explanation of the respondent No. 1 that the bus was kept in a proper state of repairs and that the accident was due to the breaking of the tie-rod. In reaching that conclusion, it relied on the testimony of NA. W. 1 Ibrahim the owner of the bus, NA. W. 2
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