JUDGMENT
K. Ahmad, J.
1. The suit giving rise to this appeal was for recovery of Rs. 602/ – from the defendants as damages for causing injuries on the person of plaintiff No. 1, a minor girl of about 9 years, while she was passing by a road on its left side along with her mother. It appears, as found by both the courts below, that at that time defendant No. 1 was coming on a cycle from the opposite direction and defendant No. 2 was with him sitting on the rod of the cycle. The allegation made against the defendants is that defendant No. 1, suddenly turned his cycle on the wrong side, that is to say, on his right and collided with the girl with the result that she was badly knocked down and had compound fractures in two of her bones in the right leg with other bleeding injuries. The complaint made in the plaint is that the collision was due to the negligence on the part of the defendants, and therefore, they are in law liable for the damages as claimed. The defendants in their written statement denied their presence on the road at the time of the collision and pleaded that the allegations made them were all false.
2. The trial Court on discussion of the entire evidence and other materials on the record came to the conclusion that this collision was due to the rash and negligent driving of the cycle by defendant No. 1. Accordingly, it decreed the suit but only for a sum of Rs. 567/-. In appeal the finding on the question of negligence has been reversed. The lower appellate Court has held that
“In any view of the case, as there was no satisfactory evidence of negligence which can be said to be the proximate cause of the accident and the injury to plaintiff No. 1 I am unable to hold that the plaintiff is entitled to claim damages. The learned Munsif was, therefore, not justified in decreeing the suit.”
Accordingly, the suit has been dismissed by the lower appellate court though in the concluding portion of the judgment there is an observation made that
“I, however, hope that the appellant would be generous enough to contribute something towards the expenses to which the plaintiffs were put and I may express the amount to be Rs. 300/-“.
3. In a case like this, although the injury is direct and forceful and as such prima facie a case of trespass to the person, still the plaintiff has to prove negligence in order to succeed, for the principle that a man cannot recover damages if he has consented to run the risk of accidental harm is clearly applicable to cases arising out of
accidents on a road. In Holmes v. Mather, (1875) 10 Ex 261 Bramwell B, in applying the rule of consent to case of accident on a road observed :
“For the convenience of mankind in carrying on the affairs of life people as they go along roads must expect, or put up with, such mischief as reasonable care on the part of others cannot avoid.”
That being the rule of law applicable in the case of road accidents, what has to be seen here is whether the plaintiffs have succeeded in establishing the element of negligence on the part of the defendants or in other words, whether they have established by the evidence on the record that all reasonable care on the part of the defendants which could avoid the collision was not taken by them. Now, the materials that have been referred to by Mr. J. C. Sinha, appearing for the plaintiff appellants, in support of the case of negligence are said to be three (1) that the nature of the injuries caused on the person of the girl was very serious, (2) that defendant No. 1 was carrying defendant No. 2 on the rod of the cycle which is not permissible under the, traffic rules and (3) that though originally defendant No. 1 was plying his cycle in the middle of the road but suddenly at the place of occurrence he turned his cycle on the wrong side of the road, namely his right and ultimately collided with the girl with the result as stated above. The grievance made by Mr. Sinha is that the lower appellate court in dealing with the question of negligence has erred in ignoring an important fact relevant to that issue, namely, that defendant No. 1 though originally plying the cycle in the middle of the road, suddenly turned on the wrong side and that resulted in the accident. In my opinion, this part of the submission made by Mr. Sinha is not without substance.
The lower appellate Court in dealing with this point has observed :
“The evidence of P, W. 2 shows that the cyclists were coming in the middle of the road and, therefore, it cannot be said that they were on the wrong side”.
This statement, made in the judgment under appeal is on the very face of it belied by what P. W. 2 actually stated at the trial. His statement on this point was that “at that time some girl students were corning on the road and the defendants turned their cycle, to the left of the road.” Therefore, the lower appellate Court on the evidence of P. W. 2 is not correct in observing that: “The evidence of P. W. 2 shows that the cyclists were coming in the middle of the road. The evidence of P. W. 2 on the contrary unambiguously shows that just at the time when the occurrence took place D. W. 1 had turned his cycle on the wrong side. Therefore the finding given by the lower appellate court on the question of negligence in the absence of any consideration of this important evidence of P. W. 2 cannot be supported in law.
In dealing with the question that two persons were there on the cycle, it has observed that “mere riding by two persons on a cycle cannot be a negligent act.” But in this connection it has omitted to consider that under the traffic rules, as I am informed, a person is not allowed to ” carry any other individual while plying a cycle, and
it may be a question for consideration that if it is done in contravention of the traffic rules, will it be any evidence of negligence or not?
4. Lastly, the seriousness of the injuries caused on the person of the girl has been considered only in the background of assessing the speed of the cycle. But I think it would not be irrelevant if it is also taken into consideration in dealing with the question whether such an injury was in fact the result of negligence on the part of the cyclist or was only the result of an accident which could not be avoided by him in spite of all care on his part.
It is true that none of the aforesaid elements taken individually may prove negligence as contemplated in law, for example, as observed in Lloyd v. Ogleby, (1859) 141 ER 268 : 5 CB NS 667 : “The mere fact of a man’s driving on the wrong side of the road is no evidence of negligence.” But the position may differ when each of them is weighed along with other circumstances on the record. Therefore the finding on negligence as arrived at by the lower appellate Court in the absence of a full consideration of all the materials on the record as pointed out above is not a finding in law and as such not binding and conclusive in second appeal.
Accordingly, the appeal is allowed, the judg-ment and decree of the lower appellate Court are set aside and the case is sent back for a fresh hearing but in the circumstances of the case, there will be no order for costs. It is, however, desirable that the case on remand should be heard by some other officer.