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Bhurmal and Mitra Motor Association and anr. Vs. Raghunath Bansilal Kasat and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberAppeal No. 56 of 1957
Judge
Reported inAIR1963Bom144; (1963)65BOMLR180; ILR1962Bom797; 1963MhLJ241
ActsEvidence Act, 1872 - Sections 114
AppellantBhurmal and Mitra Motor Association and anr.
RespondentRaghunath Bansilal Kasat and ors.
Appellant AdvocateM.R. Bobde and ;K.G. Chendke, Advs.
Respondent AdvocateK.V. Tambey and ;V. Mohta, Advs.
Excerpt:
negligence - motor omnibus--burden of proof--what must be established by those who carry passengers in answer to action in negligence.;in an action in negligence against those who carry passengers in a car or a bus, they must establish that in discharge of their duty to passengers they have taken reasonable care which it is usual to take or such as reasonable and prudent men they should take. it is their duty to see that every part of the car or bus which is likely to go out of order and create accident is properly examined.;readhead v. midland railway co. (1869) l.r. 4 q.b. 379, barkway v. south wales transport [1950] 1 all e.r. 392 and cotton v. wood (1860) 141 e.r. 1288, referred to. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court -..........to the following effect:'there is a difference between a contract to carry goods and a contract to carry passengers. for the goods the carrier was liable at all events, but he did not warrant the safety o1 the passengers. his undertaking as to them went no further than this, that as far as human care and foresight could go he would provide for their safe conveyance.' (p. 174). he then says:'an obligation to use all due and proper care is founded on reasons obvious to all, but to impose on the carrier the burden of a warranty that everything he necessarily uses is absolutely free from defects likely to cause peril, when, from the nature of things, defects must exist which no skill can detect, and the effects of which no care of foresight can avert, would be to compel a man, by implication.....
Judgment:

Patel, J.

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1. The first question is about the nature and amount of care expected from the defendants. This being an action in negligence the plaintiff must establish that the defendant owed him a duly, breach of it and a causal connection between the injury and the breach of duty. In Read-head v. Midland Railway Co. (1869) 4 QB 379 the injury resulted from the breaking of the tyre of one of the wheels, owing to a latent defect in the manufacture of the tyre. On the question of the respective liabilities of carrier of goods and carriers of passengers the learned Judge Montague-Smith, J. cited with approval a passage from Christie V. Griggs, (1809) 2 Camp 79 to the following effect:

'There is a difference between a contract to carry goods and a contract to carry passengers. For the goods the carrier was liable at all events, but he did not warrant the safety o1 the passengers. His undertaking as to them went no further than this, that as far as human care and foresight could go he would provide for their safe conveyance.' (P. 174).

He then says:

'An obligation to use all due and proper care is founded on reasons obvious to all, but to impose on the carrier the burden of a Warranty that everything he necessarily uses is absolutely free from defects likely to cause peril, when, from the nature of things, defects must exist which no skill can detect, and the effects of which no care of foresight can avert, would be to compel a man, by implication of law and not by his own will, to promise the performance of an impossible thing, and would be directly opposed to the maxims of law . . . . . . . . . .'

and then at page 76 he says:

' 'Due care' however undoubtedly means, having reference to the nature of the contract to carry, a high degree of care, and casts on carriers the duty of exercising ail vigilance to see that whatever is required for the safe conveyance of their passengers is in fit and proper order'. Having found that the accident occurred because latent defect in the machinery could not have been discovered by any amount of human skill or care, non-suited the plaintiff. The same principles were reaffirmed in Barkway v. South Wales Transport Co. (1950) 1 All ER 392 Lord Porter answering an argument on behalf of the Company that the accident of the nature and burst of a tyre owing to an impact fracture was a rare event -- one of the witnesses saying that it was negligible and that the public must take their chance of accident occurring said

'The duty, as I see it, of a Transport company is to take all reasonable precautions for the safety of their passengers and not to leave them in danger of a risk against which some precautions, at any rate can be taken'-lord Norman defined the duty of the carriers thus:

'The respondents are not insurers, but they have a duty both at common law and by their contract, with them who travel in their omnibuses to take reasonable care that the omnibus including the tyres is in good order and In a safe condition to carry a fall load of passengers on the intended journey. Here again the onus is on the respondents since they alone are in possession of the relevant facts. . .'

He then in reference to the evidence on behalf of the respondents says (402)

'Evidence that the respondents practice does not fall short of the precautions taken by other owners goes only part of the way to meet the case of negligence against them. It is not a complete answer to the charge that they have omitted precautions which were obviously called for'.

He cited with approval the following passage from the opinion of Lord Dunedin (Lord President) in Morton v. William Dixton Ltd., (1909) SC 807 in a case between employer and employee:

'Where negligence of the employer consists of what I may call a fault of omissions I think it is absolutely necessary that the proof of that fault of omission should be one of two Kinds -- either to show that the thing which he did not do was a thing which was commonly done by other persons in like circumstances or to show that it was a thing which was so obviously wanted that it would be folly in any one to neglect to provide it'.

and said that the principle is of general applicable.

2. It is argued that the learned Judge was wrong in applying the principles of res ipsa loquitur to the fact of the case. The contention is not justified. Though the learned Judge referred to the maxim in his judgment ha considered the evidence and held that the accident took place because of the negligence of the defendants. The principle underlying the maxim is a rule of evidence and may be stated to be:

'When the thing is shown to be under the management of the defendant or his servants and the accident issuch as in ordinary course of things does not happen ifthose who have the management use proper care, it affordsreasonable evidence, in the absence of explanation by thedefendants, that the accident arose from want of care',(per Earl C. J.: Scott v. London and St. Katherine DOCKSCo., (1865) 3 HC 596

In the present case the plaintiff does not rely so muchon the maxim. He has led positive evidence about thecircumstances in which the accident occurred and theextensive damage to the bus and the manner in whichIts different parts were scattered about at long distancesonly support his evidence. There is no doubt this is partof the evidence and can be legitimately used in supportof the other evidence.

* * * * *

3. It appears to us that even apart from the opinion of these experts for the one side or the other, the damage to the vehicle, the way in which its different parts were found lying at different places and the damage to the several parts of the bus itself, read with other evidence is more than sufficient to lead us to the inference that the vehicle was driven at a speed at which it should not have been driven and, therefore, it got out of control and met with the accident. In this view of the evidence it is obvious that the case does not fall within the principle of the case Cotton v. Wood, (1860) 141 ER 1288 where Earl C. J. Eaid:

'When it is a perfectly even balance upon the evidence Whether the injury complained of has resulted from want of proper care on the 'one side or on the other, the party who founds its claim upon the imputation of negligence fails to establish its case.'

4. Even if we were to assume that the drag-link got disconnected as alleged it does not solve the appellant's difficulties. Those who carry passengers know the heavy responsibility that rests on them. They must establish that in discharge of their dirty to passengers who trust them they have taken reasonable care which it is usual fo take or such as reasonable and prudent men they should take. It is not enough to say that it had passed the Regional Transport Department check about six months back. Since they carry the lives of several persons in their hands it is their duty at least to see that every part of the car or bus which is likely to go out of order and create accident is properly examined. If one examines the draglink and the other parts of the steering mechanism one must realise that they are so manufactured that no part can get dislocated easily. Moreover no part gives way all of a sudden. In the present case it is no one's case that a new part was installed which gave way during the journey in which it may well have been regarded as manufacturing defect. Apparently this part has been there for several years in use and it is not likely to give way as contended for on behalf of the defendants. All the parts are made from tempered steel and the ball point is not likely ,to slip away merely because they may be slight wear. When the ball points gets worn there is sufficient warning since jerk would be felt at the driving wheel. There must then be replacement. The driver has made a bold statement that he examined the steering mechanism before starling on the journey. Agent who was present does not speak of it and conductor is not examined. None of the witnesses have been asked about it. It is also strange that he examined only those parts. It seems to us that he is not speaking the truth when he says this. The defendants have not led any evidence to show the age of vehicle, the frequency of checks and mechanics employled. We therefore come to the conclusion that even if it is assumed that the vehicle went out of control because the drag-link ball slipped from its socket the defendants have not shown that they usually take all such reasonably precautions as ought to be taken or can reasonably be taken and that in fact they have taken in this case. In either event, therefore, we must hold that there has been negligence on the part of the defendants.

5. (Rest of the judgment is not material for the purpose or the report.)

6. Allowed.


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