Posted On by &filed under Allahabad High Court, High Court.


Allahabad High Court
Shanti Swaroop Agarwal vs U.P. State Road Transport … on 12 September, 2003
Equivalent citations: I (2004) ACC 179, 2005 ACJ 1501
Author: P Krishna
Bench: P Krishna


JUDGMENT

Prakash Krishna, J.

1. The present appeal arises out of dismissal of the claim petition filed by the appellant under Motor Vehicles Act, 1939. The court below has rejected the Claim Petition No. 33 of 1981 on the finding that the appellant has failed to prove that the vehicle was being driven rashly and negligently and the appellant was injured as a result thereof. The other issues have been decided in favour of the appellant.

2. The facts of the case lie in narrow compass. Claimant on 4.2.1981 reached Hathras Roadways Bus Stand by travelling through Roadways bus. Claimant stepped down from the bus. The Roadways workshop and the Roadways bus stand are separated by a wall. The separating wall fell down suddenly and it caused compound fracture on the left leg of the claimant. A claim petition giving rise to the present appeal was filed. The said claim petition was contested by the respondents on the allegations that bus No. URB 231 was standing in the workshop at a slopy place in gears for repairs with starting switches on. Suddenly a monkey entered into the bus and it appears that the body of the monkey pressed starting switch button and consequently the bus started and hit the boundary wall in between the workshop and the bus stand. As a consequence thereof the bricks of the wall fell down and the petitioner was injured. According to the respondents it was a simple case of vis major (act of God).

3. The Tribunal framed three issues. Issue No. 1 was decided against the appellant by holding that the accident did not take place due to rash and negligent driving of the bus driver. Issue Nos. 2 and 3 were decided in favour of the appellant and it was held that the claim petition was maintainable and claim of Rs. 50,000 towards damages is not exaggerated. However, the claim petition was dismissed in view of the findings recorded under issue No. 1.

4. Heard learned counsel for the parties and perused the record.

5. The court below has recorded a finding on issue No. 1 on the ground that the appellant was not able to point out the name of the driver. The court was of the opinion that to point out the name of the driver was not a difficult task and under the Motor Vehicles Act a duty has been cast on the authority concerned to tell the name of the driver of the vehicle. There is no dispute between the parties that the bus was inside the workshop and was standing on slope with the engine on and the vehicle was in gears. It is also not disputed that somehow the bus started moving and hit the dividing wall and consequently the claimant received injuries on account of fall of bricks of the wall on him.

6. While deciding issue No. 1 regarding negligence the Tribunal came to the conclusion that neither the testimony of the claimant, PW 1, nor Ganga Devi, PW 4 are reliable. The claimant had stated in his examination-in-chief that he had seen the driver in the bus. The Tribunal concluded that the driver, who stationed the bus inside the workshop, cannot be said to have acted negligently, when he stationed the bus inside the workshop near the wall. Nobody could expect that a monkey would come inside the bus and the bus would be started, by pressing the switch button. The owner and employees are expected to take care like a reasonable and prudent man while stationing a vehicle.

7. Aggrieved by the aforesaid judgment and order, claimant has filed the present appeal and challenged the finding recorded by the court below on issue No. 1.

8. Heard learned counsel for the parties and perused the record.

9. The question which falls for determination in the present appeal is whether in the facts and circumstances of the case it can be said that the respondents were negligent and are liable to pay damages for the injury suffered by the claimant.

10. ‘Negligence’ as defined by Win-field on Tort is breach of legal duty to take care, which results in damage undesired by defendant to the plaintiff. Thus there are three ingredients, (i) A legal duty to ‘B’ to exercise care in such conduct of ‘A’ as falls in the scope of duty; (ii) Breach of that duty; (iii) Consequential damage to ‘B’.

11. It has been further stated by Win-field that it is not every careless act that a man may be held responsible for in law nor even for every careless act that causes damage. A man will be liable for negligence if he is under legal duty to take care. But in the tort of negligence the breach of duty is significant ingredient of the tort, in fact there is no other except damage to the plaintiff. The Supreme Court in Union of India v. United India Insurance Co. Ltd., , has stated that test of breach of common law duty is again the test of a reasonable or prudent man in the practical fact situation. In M.S. Grewal v. Deep Chand Sood, , Supreme Court defined ‘negligence’ in the following manner:

“Negligence in common parlance mean and imply, ‘failure to exercise due care, expected of a reasonable prudent person’. It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of safety of others. In most instances, it is caused by heed-lessness or inadvertence, by which the negligent party is unaware of the results which may follow from his act. Negligence is thus a breach of duty or lack of proper care in doing something, in short, it is want of attention and doing of something which a prudent and a reasonable man would not do. [Vide Black’s Law Dictionary]. Though sometimes, the word ‘inadvertence’ stands and used as a synonym to negligence, but in effect negligence represents a state of mind which, however, is much serious in nature than mere inadvertence. There is thus existing a differentiation between the two expressions–whereas inadvertence is a milder form of negligence. ‘Negligence’ by itself mean and imply a state of mind where there is no regard for duty or the supposed care and attention which one ought to bestow. Clerk & Lindsell on Torts, 18th Edn., sets out for four requirements of the tort of negligence and the same read as below:

‘(1) The existence in law of a duty of care situation, i.e., one in which the law attaches liability to carelessness. There has to be recognition by law that the careless infliction of the kind of damage in suit on the class of person to which the claimant belongs by the class of person to which the defendant belongs is actionable;

(2) Breach of the duty of care by the defendant, i.e., that it failed to measure up to the standard set by law;

(3) A causal connection between the defendant’s careless conduct and the damage;

(4) That the particular kind of damage to the particular claimant is not so unforeseeable as to be too remote’.”

12. In the aforesaid case the children of a school went for a picnic with two teachers who were escorting them. The teachers and the children were trapped in a dibber of water. It was held that the school being the employer was liable to pay compensation for the death of children.

13. The normal rule is that it is for the plaintiff to prove negligence and not for the defendant to disprove it. But there is exception to the rule which applies where the circumstances surrounding the things which cause damage are at the material time exclusively under the control or management of the defendant or servant and the happening is such as does not occur in the ordinary course of things without negligence on the defendant’s part. In some cases considerable hardship is caused to the plaintiff as the true cause of accident is not known to the plaintiff but is solely within the knowledge of the defendant who caused it. The plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. There is maxim known as ‘res ipsa loquitur’. This is a Latin phrase which signifies nothing more than that ‘thing speaks for itself’. This Latin phrase is found in the old case Bryne v. Bedle, (1863) 2 H&C 722. In this case it was observed by Pollock that a barrel would not roll out of warehouse without some negligence and to say that the plaintiff who got injured by it must call witnesses from the warehouse to prove negligence seems preposterous.

14. This legal maxim is a rule of presumptive evidence. But sometimes the circumstances are such that the court will be prepared to draw an inference of negligence against defendant without hearing detailed evidence of what he did or did not do.

15. Apex Court in the case of Municipal Corporation of Delhi v. Subhagwanti, 1966 ACJ 57 (SC), has applied aforesaid maxim. The facts of the case were that Clock Tower of the Municipal Corporation collapsed causing loss of life of one Ram Prakash. A suit was filed by the heirs of Ram Prakash for recovery of damages. Supreme Court approved the judgment of the trial court and held that it was the duty of the Municipal Committee to take proper care of buildings so that they should not prove the source of danger to a person using highway as a matter of right. It was observed:

“In our opinion, the doctrine of res ipsa loquitur applies in the circumstances of the present case. It has been found that the Clock Tower was exclusively under the ownership and control of the appellant or its servants. It has also been found by the High Court that the Clock Tower was 80 years old and the normal life of the structure of the top storey of the building, having regard to the kind of mortar used, could be only 40 or 45 years. There is also the evidence of the Chief Engineer that the collapse was due to thrust of the arches on the top portion and the mortar was deteriorated to such an extent that it was reduced to powder without any cementing properties. It is also not the case of the appellant that there was any earthquake or storm or any other natural event which was unforeseen and which could have been the cause of the fall of the Clock Tower. In these circumstances, the mere fact that there was fall of the Clock Tower tells its own story in raising an inference of negligence so as to establish a prima facie case against the appellant.”

16. It was held that mere fact that there was fall of Clock Tower tells its own story in raising an inference of negligence so as to establish prima facie case against the defendant.

17. The aforesaid judgment has been followed by Supreme Court in the case of Municipal Corporation of Delhi v. Sushila Devi, . It was a case of death of a person consequent to the injury sustained due to fall of branch of a tree over the deceased. It was further held that if there is a tree standing on defendant’s land which is dried or dead and for that reason may fall and the defect is one, which is either known or should have been known to the defendant, then the defendant is liable for any injury caused due to fall of tree. The premises must be maintained in a safe state of repair. The owner/occupier cannot escape the liability for injury caused by any dangerous thing existing on the premises by pleading that he had employed a competent person to keep the premises in safe repairs.

18. Now I shall consider the undisputed facts of the present case. The Roadways workshop and the Roadways bus stand are separated by wall. The claimant stepped down from the bus and was standing at the bus stand. The claimant received injuries in his left leg by the fall of wall separating the Roadways workshop, which resulted in compound fracture of left leg. According to defendant-respondent the bus was parked at a slopy place in gears for repairs with starting switches on. Suddenly a monkey entered into the bus and his body pressed the starting switch button and the bus started moving. In the light of principles of law, as stated above, now a question arises as to whether defendant had taken reasonable care as a man of ordinary prudence. On this fact it cannot be said that the defendant had taken a reasonable care as a man of ordinary prudence as the bus was parked at a slopy place with the engine switch on. The parking of the vehicle at a slopy place with the engine switches on without applying the handbrake and without some obstruction in the form of a stone or bricks near the wheel of the bus so that the bus could not move prima facie establishes negligence. The vehicle should have been put, in absence of handbrake, in reverse gear to prevent every possibility of moving the vehicle in the direction of slope. Parking of a vehicle on a slope with engine on is nothing but itself a negligent act. Proper precaution to prevent moving or rolling of the vehicle was not taken. The contrary findings recorded by the Tribunal cannot be sustained on this issue. Tribunal while discussing the issue lost sight of the fact that the vehicle was not stationed on even surface, but was stationed at a slope with engine (ignition switch) on. A little care to put the vehicle in the reverse gear against the slope or to put some obstacle near the wheel to prevent its movement or rolling would have avoided the said accident.

19. I also do not agree with the findings of the Tribunal that it was the duty of the plaintiff to find out the name of the driver and in its absence negligence is not established. The vehicle in question was under the control of the defendants. The claimant was lawfully there on the bus stand along with his family members as he reached Hathras Roadways Bus Stand. The accident itself speaks negligence of the defendant. Keeping the vehicle with engine on, on slope is sufficient to draw the inference of negligence on the part of defendant. The defendants committed breach of duty to park the vehicle in a safe manner. The test of breach of common law duty is again test of reasonable or prudent man in the particular facts and situation, as observed by Supreme Court in the case of Union of India, . It is not the case of defendants that the vehicle started moving due to some mechanical fault. It is also not the case of the defendants that boundary wall fell down on account of ‘act of God’. The case of the defendant is that a monkey suddenly entered into the bus and it appears that switch was pressed by the body of monkey and consequently the bus started and went away and hit the boundary wall in between the bus workshop and bus stand. The defendant has taken a defence that accident was an act of God. Recently Supreme Court in the case of Divisional Controller, Karnataka State Road Trans. Corporation v. Mahadeva Shetty, , has described the expression ‘act of God’. It means the operation of natural force free from human intervention, such as lightning, storm, etc. Relevant para 9 is quoted below:

“The expression ‘act of God’ signifies the operation of natural forces free from human intervention, such as lightning, storm, etc. It may include such unexpected occurrences of nature as severe gale, snowstorms, hurricanes, cyclones, tidal waves and the like. But every unexpected wind and storm does not operate as an excuse from liability, if there is a reasonable possibility of anticipating their happening. An act of God provides no excuse unless it is so unexpected that no reasonable human foresight could be presumed to anticipate the occurrence, having regard to the conditions of time and place unknown to be prevailing at. For instance, where by experience of a number of years, preventive action can be taken. Lord Westbury defined act of God (damnum fatale in Scotch laws) as an occurrence, which no human foresight can provide against and of which human prudence is not bound to recognise the possibility. This appears to be the nearest approach to the true meaning of act of God. Lord Blancaburgh spoke of it, as ‘an irresistible and unsearchable providence nullifying human effort’.”

20. In view of the aforesaid judgment it cannot be said that the accident happened due to ‘act of God’. The theory of monkey as introduced by the defendant appears to be ‘cock and bull story’. It does not appeal to reason. There is no reliable evidence for the same on record although two witnesses produced by the defendant supports the story of monkey. But by common experience movement of the bus on account of fact that starting switch was touched by the body of the monkey, the bus started moving does not appeal to reason. A bus is a heavy vehicle and cannot move without pressure on the accelerator and it causes lot of noise when its engine starts. The monkey by nature is frightened animal and is not heavily weighed. It is unbelievable that in spite of noise of starting engine of the bus, the bus gained so much speed as to hit against the wall with such force that the wall is collapsed and thereby hit the person standing in the bus stand near the wall.

21. In my view, the maxim res ipsa loquitur is fully applicable to the facts of the case. Claimant has discharged burden of proof to prove the breach of duty owned by the defendants. It was for the defendant to claim that in spite of all reasonable care the accident had taken place. I hold the defendant as negligent and, therefore, liable to pay damages to the claimant. In support of my above view I am placing reliance in the case of Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co., 1977 ACJ 343 (SC). This case was also under Motor Vehicles Act, 1939. It was denied by the owner and insurance company that the vehicle was driven in a rash and negligent manner at the time of the accident. The accident took place as the vehicle went to the right extreme of the road, dashed against a tree and moved it a few inches away. Applying the aforesaid legal maxim it was held that the car could not have gone to the right extremity and dashed with such violence on the tree, if the driver had exercised reasonable care and caution. On the facts made out the doctrine is applicable and it is for the opponent to prove that the incident did not take place due to their negligence.

22. In view of the above the findings of the Tribunal on issue No. 1 cannot be sustained and is accordingly set aside and the said issue is decided in favour of the claimant.

23. Fortunately enough, in the present case the Claims Tribunal has determined compensation and has recorded a finding that the plaintiff had suffered damages to the tune of Rs. 50,000.

24. In the result, appeal as well as the claim petition is allowed. The defendant-respondent is held liable to pay Rs. 50,000 as damages with 8 per cent interest thereon. The interest shall be payable from the date of application to the date of payment. The claimant shall also be entitled to costs.


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