Deoki Nandan, J.
1. This is a plaintiff's -second appeal in a suit for recovery, of Rs. 7,500/- as damages arising from the personal injury caused to him by a motor accident which occurred on 15th Jan., 1950. The most tragic part of this tragic story is the fact that the suit giving rise to the second appeal, filed by the plaintiff in the year 1951 in the Court of the Senior Civil Judge, Garhwal has taken more than 30 years to come up for final decision. The delay has not been caused by any fault of the parties in this case. The process of our Courts has been entirely responsible for the delay.
2. The plaintiff was posted as an Assistant Engineer in the Irrigation Department of the Government of Uttar Pradesh in Garhwal, when on 15th Jan., 1950 he was travelling from Rudra Prayag to Srinagar (Garhwal) with his staff by a motor bus owned by defendant-respondent 2, who has since died and is now represented by his heirs and legal representatives, which was operating under the control and management of defendant-respondent 1, which is a Union of the Motor Operators of Garhwal and registered under the Companies Act. The third defendant-respondent was the Insurance Company with which the Bus was supposed to have been insured by defendant-respondent 2 against third party risks. The finding is that the insurance policy, though issued, was not operative because the premium had not been paid. I am unable to understand how the policy was issued without the payment of the premium, but the Insurance Company is not represented in this Court. It would appear that it ceased to carry on business long ago.
3. There is no dispute that the accident occurred. The findings are that the accident occurred on account of the breaking down of the spindle of the left front wheel of the bus. The plaintiff-suffered a compound fracture of the numerous of his left arm and remained hospitalised for almost a year. His claim for recovery of damages in the sum of Rs. 5,195/- has been found to be proved by both the Courts below. But while the Court of the Civil Judge Tehri at Kotdwara, decreed the suit, on 4th March, 1954 for recovery of the said sum of Rs. 5,195/- plus proportionate costs amounting to Rs. 1,319/- out of Rs. 1,500/-, and future and pendente lite interest at 3 per cent per annum, the Court of the 1st Additional District Judge, Allahabad, to which the first appeal preferred from that decree by the Garhwal Motor Owners Union and Bahadur Singh Bist, the deceased owner of the bus, in this Court, stood transferred dismissed the suit by judgment dated 5th Nov., 1965.
4. The pleadings of the parties gave rise to as many as 9 issues and the 10th issue was about the relief, if any, to which the plaintiff is entitled. Without referring to the issues which no longer survive, it is sufficient to say that on a detailed consideration of the evidence on the record, the trial Court found on issue 3, that the accident was caused by the breaking down of the spindle of the left front wheel of the motor bus, and the driver of the vehicle was able to avert a major accident by his presence of mind and could not thus be said to be at fault, but that the bus was not in an efficient and sound condition and, therefore, defendants 1 and 2 were liable in damages for the injury caused to the plaintiff. On issue 2 the finding of the trial Court was that the bus was booked in spite of being in a defective condition and that amounted to negligence on the part of the servants of defendants 1 and 2 for which the said defendants were responsible. On issue 4, the finding of the trial Court was that the plaintiff could be said to be guilty of contributory negligence. On issues 5, 6, 7 and 8, the finding of the trial Court was that it has not been proved that the motor bus was insured and, therefore, the third defendant could not be held liable. On issue 9 the finding was that defendants Nos. 1 and 2 were liable to pay Rs. 5,195/- as damages.
5. The lower appellate Court raised the following three points for its consideration:--
(i) Whether the plaintiff's evidence established any case of negligence on the part of either of the appellants?
(ii) If negligence were proved, whether the injury to the plaintiff was on account of that negligence?
(iii) Whether the damages claimed were excessive ?
5-A. As already noticed, on the third point, the lower appellate Court found that if the plaintiff was found entitled to compensation for the injury suffered by him he would be entitled to claim Rs. 5,195/- as damages from both defendants 1 and 2. who were the appellants before it.
6. On the first two points which the lower appellate Court took up together for consideration, it accepted the case that the accident was caused by the breaking down of the spindle of the left front wheel of the motor bus, but that it was of the view that it was not a case of res ipsa loquitur, and observed as follows :--
'Nothing has been brought out to indicate, that the condition of the spindle was defective, or that this defect, was known to either of the two appellants, or their servants. Even if it were conceded that the plaintiff had detected certain sounds emanating from the clutch and the gear, there is nothing to connect these sounds with the breaking of the spindle..... Thus, there is absolutely nothing to show, that the condition of the spindle was known to anyone and the breaking of the spindle is the undoubted cause of the accident, leading to the injuries sustained by the plaintiff. A carrier is not an insurer of every passenger on the vehicle. His liability would arise only if there were any negligence established on his part, It is conceded that the vehicle had been certified as fit to ply on that route, only two months prior to the accident. As I have said, there is nothing to indicate, that anything went wrong with the spindle meanwhile. The burden lay squarely on the plaintiff to estab-lish the negligence alleged by him. Indeed, we find that the plaint does not disclose any particular negligence, except the mere assertion, that the vehicle was not in a fit condition to ply on the route. The obvious thing for the plaintiff to do was to summon the spindle and to establish that its condition was due to negligence of the (plaintiff) (sic) and, of course, that it was somehow defective. If it were a case of manufacturing defect, obviously the appellant would not be liable. That possibility should have been ruled out it seems to me, that the lower Court was in error in drawing inference from the alleged non-production of the spindle by the appellant as it was never summoned and they never refused to produce it. There is again, nothing to show, that the plaintiff ever summoned the Book or the Register, in which, we are told, defects are noted, when pointed out by the Driver, before the commencement of the journey. It is possible, that the Driver may have pointed out some defect in the vehicle, but this does not mean, that it was that defect, which led to the accident. I am, therefore, not satisfied, that the plaintiff had established any negligence on the part of the two appellants, and on his own showing the Driver of the vehicle was not only not negligent, but careful, and prevented a more serious occurrence, by his timely action and presence of mind. As I have said earlier, the carriers do not insure the passengers against all risks. So long as he has taken reasonable care to keep the vehicle in a fit state of repair, and so long as his agent, namely, the Driver has acted with reasonable care, there can be no liability, merely, because an accident has taken place, and a passenger has suffered injury. The burden was not on the defendant, to establish, that they had taken every care in this case, and were not negligent. I, therefore, hold that on the facts of this case, it was a case of pure accident, for which the appellants are, in any way, liable. It would be a case of damnum sine injuria.'
7. This is all that the learned Additional District Judge has said for deciding of the case against the plaintiff. It is apparent that the learned Additional District Judge placed the entire burden of proof on the plaintiff, even to show that the spindle was defective and that it had broken down not on account of any manufacturing defect but on account of some defect for which the defendants 1 and 2 were responsible.
8. Learned counsel for the appellant was rather critical of the approach of the learned Additional District Judge and urged on the basis of the ruling of the Supreme Court in Minu B. Mehta v. Balkrishna : 2SCR886 that where an accident is caused by a mechanical defect in the motor vehicle, the onus is on its owner to prove that he had taken all the necessary precaution and had kept the vehicle in a road-worthy condition and that the accident occurred in spite of all the reasonable care and caution on his part. I shall advert to the point so raised by the learned counsel for the appellant, a little later. I must first dispose of a preliminary objection raised by Mr. Yudhishthira, Advocate, to the maintainability of the second appeal after the death of the second defendant which occurred during its pendency in this Court. Mr. Yudhishthira urged that as a general rule the right to sue for damages for injury occasioned by tort dies on the death of either party, actio personalis moritur cum persona. There are certain exceptions. Some of the exceptions are statutory, for instance that created by the Indian Fatal Accidents Act, 1855, which enables the heirs of a person whose death was caused by a tortious act to recover damages against the wrongdoer for the loss occasioned to them by the death. Instead of going into the basis for the above doctrine, it would be sufficient for the purposes of the present case to read Section 306, Succession Act, 1925, and to see whether the case of an injury occasioned by a motor accident is taken out of the clutches of the rule enacted by that provision by anything contained in the Motor Vehicles Act, 1939, particularly Section 102 of Chap. VIII thereof, as they stood before the amendments made in the year 1956. for in this case, the cause of action accrued before the said amendment of the Act.
9. Section 306, Succession Act, reads as under:--
'All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as denned in the Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.
Illustrations: (i) A collision takes place on a railway in consequence of some neglect or default of an official, and a passenger is severely hurt, but not so as to cause death. He afterwards dies without having brought any action. The cause of action does not - survive.
(ii) A sues for divorce. A dies. The cause of action does not survive to his representative.'
Section 102, Motor Vehicles Act, reads as under :--
'Notwithstanding anything contained in Section 306, Succession Act, 1925, the death of a person in whose favour a certificate of insurance had been issued, if it occurs after the happening of an event which has given rise to a claim under the provisions of this Chapter, shall not be a bar to the survival of any cause of action arising out of the said event against his estate or against the insurer.'
Chapter VIII, of which Section 102, Motor Vehicles Act, forms part provides for compulsory insurance of Motor Vehicles against third party risks. After the amendments made in 1956, it also provides for recovery of compensation by the appointment of Motor Accidents Claims Tribunals under Section 110 to Section 110-F and Section 111-A. Before the amendment there was no provision for Motor Accident Claims Tribunals. 10. Section 102 speaks of a claim under the provisions of this Chapter, that is Chapter VIII of the Motor Vehicles Act, as the kind of claim in respect of which the death of a person in whose favour a certificate of insurance had been issued, that is, the death of the owner of a Motor Vehicle, shall not be a bar to the survival of any cause of action arising out of the claim against his estate or against the insurer. In this case the insured, namely, the owner of the motor vehicle having died during the pendency of the second appeal in this Court, and the insurer, namely, the Insurance Company may also be deemed to be dead, therefore, if the claim in suit is one, which can be said to be a claim under the provisions of Chap. VIII of the Motor Vehicles Act, the death of the owner would not prevent the survival of the cause of action for damages against his estate, that is to say, against the property coming to the hands of his heirs and legal representatives. The question which, therefore, arises is whether the claim in the suit giving rise to the second appeal could be said to be a claim under Chap. VIII of the Motor Vehicles Act. Chapter VIII makes the provision for insurance of motor vehicles against third party risks. While Section 94 requires the necessity for insurance against third party risks, Section 95 lays down the requirements of policies and limits of liability in respect of such insurance. Sub-section (1) thereof lays down :
'(1) In order to comply with the requirements of this Chapter, a policy in insurance must be a policy which--
(a) is issued by a person who is an authorised insurer .....
(b) insures the person or classes of person specified in the policy to the extent specified in Sub-section (2) against any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of the vehicle in a public place, in India or in a reciprocating territory :
Provided that a policy shall not be required--
(a) to (c) ..... or
(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, or
Sub-section (2) runs thus: Subject to the proviso to Sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely : --
(b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of ;t contract of employment, in respect of persons other than passengers carried for hire or reward, a limit of twenty thousand rupees; and in respect of passengers a limit of twenty thousand rupees in all, and four thousand rupees in respect of an individual passenger, if the vehicle is registered to carry not more than six passengers excluding the driver or two thousand rupees in respect of an individual passenger if the vehicle is registered to carry more than six passengers excluding the driver: (c) .....
(5) Notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.'
These are the matters in which a claim could arise under the provisions of Chapter VIII of the Motor Vehicles Act. The difficulty, however, is that although a policy of insurance was said to have been issued in the present case, the finding is that the policy did not take effect because the premium was not paid. There is no finding whether a certificate of insurance had been issued by defendant 3 in favour of defendant 2. Be that as it may, in view of the finding that the Bus was not insured against third party risks, one has to proceed on the assumption that a certificate of insurance was not issued. Prima facie Section 102 applies to a case where a person in whose favour a certificate of insurance has been issued dies after the event giving rise to a claim under Chapter VIII of the Motor Vehicles Act has occurred. The question is whether liability of the owner of a motor vehicle in respect of a claim of the kind covered by Chap. VIII of the Motor Vehicles Act would still be a liability for a claim under the provisions of that Chapter in a case where the owner did not get himself insured against third party risks although required to do so under the provisions of that Chapter. The owner's liability arises independently under the provisions of Chap. VIII of the Motor Vehicles Act. That Chapter only mitigates the owner's liability by compulsorily passing it on to an authorised insurer, subject to the limits imposed by Section 95(2), provided, the owner complies with the statutory requirements of obtaining a certificate of insurance, of course, after paying for it, and, if that is done, Section 102 says that the death of the owner shall not be a bar to the survival of any cause of action arising out of the said event against his estate or against the insurer. It stands to reason that although there could be no liability against the insurer in a case where there is no insurance, the owner of a motor vehicle could not be deemed to prevent a survival of the cause of action for a claim under the provisions of Chap. VIII of the Motor Vehicles Act, in case a death occurs after the event giving rise to that cause of action, by his omission to insure himself against third party risks. This inference is supported by the fact that the primary liability to pay compensation for the loss occasioned by the use of a motor vehicle is that of the owner of the motor vehicle or of the person who uses it. Looking at the matter in this light it appears to me that the fact that the owner of a motor vehicle has not got himself insured against third party risks cannot lead to the result that in the event of his death after a motor accident or some such event giving rise to a claim for compensation against him, the causes of action for that claim shall not survive on his death against his estate.
11. I must now refer to the cases cited by Mr. Yudhishthira on this point. The first case cited was that of Mahtab Singh v. Hub Lal : AIR1926All610 . It was held by a Division Bench of this Court in that case on a consideration of the case law and the statutory provisions leading to and including Section 306, Succession Act, 1925, that a right to claim damages for malicious prosecution arising out of a charge of rioting and grievous hurt dies with the plaintiff and it was held that, therefore, an appeal from dismissal of the suit for damages for malicious prosecution abated on the plaintiff-appellant's death as the cause of action for the suit did not survive. That case is obviously distinguishable from the facts of the present case. There is no provision like Section 102, Motor Vehicles Act, to ensure the survival of the cause of action on the death of either party in a suit for damages for malicious prosecution.
12. In the next case of Dehra Dun Mussorie Electric Tramway Co. Ltd. v. Hansraj : AIR1935All995 . 306, Succession Act, 1925, came up for interpretation before a Division Bench of this Court. The question was whether a case of fraud was within the scope of personal injury such as to cause the death of the cause of action for relief in respect of fraud against the wrongdoer on his death. The Bench held that there was no difficulty inasmuch as fraud did not give rise to any personal injury in the sense in which that expression was used in Section 306, Succession Act. That is not the case here. The injury for which compensation is sought in the present case was surely a personal injury and but for Section 102, Motor Vehicles Act, it would have been impossible to say that the cause of action for the suit for damages against the owner of the motor vehicle in respect of such personal injury as was caused in the present case could survive his death. The next case Baboolal Nanhelal v. Ramlal Nandram (AIR 1952 Nag 408) was a case of a suit for damages for defamation. It was held that the right to sue did not survive the death of the defendant who was the respondent in the appeal from the dismissal of the plaintiffs suit. Section 306, Succession Act, 1925 was not referred to in this case but the suit was abated on the general principle that if an injury were done either to the person or to the property of another, for which unliquidated damages only could be claimed, the action dies with the person to whom or by whom the wrong was done. Nevertheless it was recognised that there are statutory exceptions to the rule. In RM P. KP. A. R. Arunachalam Chettiar v. S.V.V. Subramaniam Chettiar : AIR1958Mad142 a Division Bench of the Madras High Court laid it down that the maxim actio personalis moritur cum persona is part of the law of India except In so far as it has been modified by statute. That was a case of damages for malicious prosecution and in the absence of any statutory exception to the rule the action was held to have abated on the defendant's death during the pendency of the appeal. In Syedna Taher Saifuddin Saheb v. State of Bombay : AIR1958SC253 the Supreme Courl applied the maxim actio personalis moritur cum persona to an action for relief against ex-communication, and held that on the death of the plaintiff who was a respondent before the Supreme Court, and no decree had till then been passed in his favour, the suit abated as the claim with which he had come to Court was personal to him. In Ratanlal Bhannalal Mahajan v. Baboolal Hajarilal Jain : AIR1960MP200 on a consideration of the scope of S. 306, Succession Act, 1925, it was held that the expression personal injuries in that provision is not confined to physical injuries but would include mental injuries as well and a claim for compensation for loss of reputation or mental agony would not survive after the death of the party injured, but a claim for compensation for damage caused to plaintiff's goods by the tortious act of the defendant would survive to the legal representatives of the deceased plaintiff if the plaintiff's estate to the extent of the wrong done by the defendant had directly and not remotely suffered. It is not the nature of the wrong but the nature of the injury that is material. The case of Shiam Sunder v. Imamuddin (1964 ALJ 1115) also arose from a suit for damages for malicious prosecution. After declaring the action to have abated on account of the death of the defendant-respondent during the pendency of the second appeal in the High Court S.S. Dhavan, J. did, however, observe at the close of his judgment 'that the doctrine of actio personalis moritur cum persona has been condemned as unfair and barbarous by almost every Court in India,' and that 'it deprives a plaintiff who has suffered injury from the wrongful act of the defendant to proceed against his estate,' and that the reform of the law has become overdue. It is not open to the Court to reform the law but the provisions of Section 102, Motor Vehicles Act, which mitigate the rigour of the barbarous law could surely be interpreted to advance the remedy rather than in a narrow and pedantic manner. The case of Jogindra Kuer v. Jagdish Singh : AIR1964Pat548 was of an appeal from a suit for damages arising out of a motor accident between the plaintiffs motor car and the defendant's motor truck. The plaintiff died during the pendency of the appeal before the High Court and it was contended that the right to sue did not survive his death. The Patna High Court considered Section 306, Succession Act, 1925, and held that while the claim for compensation for the damage caused to the plaintiffs car survived his death, the claim for enhancement of the compensation for the injury caused to his person could not survive his death. The attention of the Bench of Patna High Court which decided that case does not appear to have been invited to Section 102, Motor Vehicles Act, as the judgment contains no reference to it.
13. I am, therefore, of the view that none of the cases cited by Mr. Yudhishthira on behalf of the legal representatives of the deceased defendant-respondent 2, is of any assistance in deciding the question whether the cause of action for damages for the personal injury caused to the plaintiff could be said to have survived the death of the second defendant-respondent during the pendency of the second appeal in this Court. I would say it survives, and the mere fact that the second defendant-respondent did not have a certificate of insurance against third party risks in his favour cannot prevent the survival of cause of action for damages against his estate. There is, however, another string to the plaintiff's bow in the present case. His learned counsel urged that the primary liability in the present case to compensate the plaintiff for the personal injury caused to him was of the first defendant-respondent, namely, the Garhwal Motor Owners Union Ltd., under whose control and supervision the bus was plying and with whom the contract for his carriage as a passenger was entered into by the plaintiff, and the argument is buttressed by the fact that the liability of G. M. O. U. arose from the contract entered, into by it for carrying the plaintiff, to his destination, and it must be deemed to have been an implied term of the contract that the plaintiff would be carried to his destination, safely and without causing any injury to his person. I shall, however, advert to this point later.
14. First I must determine the question whether the plaintiff is at all entitled to recover any damages for the injury sustained by him.
15. I have quoted in extenso the reasons given by the lower appellate Court for its finding that the plaintiff was not entitled to recover any damages. The cause of the accident was the breaking down of the spindle of the front left wheel of the motor bus. That was a mechanical failure. In Minu B. Mehta v. Balkrishna Ramchandra Nayan : 2SCR886 the Supreme Court observed that: 'In order to succeed in a defence that the accident was due to a machani-cal defect, the owners will have to prove that they had taken all necessary precautions and kept the lorry in a roadworthy condition'; and where 'no such attempt was made to establish that all necessary precautions were taken to keep the lorry in a roadworlhy condition, and that the defect occurred in spite of the reasonable care and cautioa taken by the owners.' The owners may be held liable to compensate the plaintiff for the injury caused by the accident unless they further plead and prove that the defect was latent and not discoverable by the use of reasonable care. According to the Supreme Court the burden of proving that the accident was due to mechanical defect and of showing that they had taken all reasonable care and that the defect remained hidden in spite of such care was on the defendant.
16. The present case before me is conspicuous by the absence of any plea or evidence to show that the spindle broke down due to a latent defect and that the defendants could not prevent it in spite of all the reasonable care and caution which they took for the maintenance of the vehicle. All that has been shown is that a month and 24 days before the accident occurred, the motor bus had been certified fit by the Technical Inspector of the Motor Vehicles Department by the grant of a certificate of fitness. That of course is only a statutory formality and it cannot be said that the mere fact that a motor vehicle is certified fit by the grant of a certificate of fitness under the Motor Vehicles Act, the existence of such certificate of fitness discharges the owner of motor vehicle of all responsibility of. maintaining it property with all reasonable care and caution to prevent an accident on account of any mechanical defect or failure of the vehicle. The lower appellate Court has clearly placed the entire burden of proof on the plaintiff and in doing so it committed a manifest error of law. It was not for the plaintiff to summon the spindle. It was for the defendants to show by evidence that the spindle broke down in spite of all the reasonable care and caution taken by them in maintaining the vehicle, and that in spite of that care and caution, they could not know of the condition of the spindle. It is true that the defects said to have been complained of by the plaintiff before the commencement of the journey were such as did not have any direct relation with the spindle, but the fact remains that the pointing out of those defects showed that the motor bus was not being maintained properly and that its general condition was not good. That was good evidence to show that the motor bus was not being maintained with all the reasonable care and caution and that the driver of the motor bus and the booking clerk or agent of G. M. O. U. acted rashly in booking the motor bus and allowing it to proceed on journey in spite of its poor condition. A spindle of a motor bus does not break down everyday and if it does break down, it is reasonable to infer that the motor vehicle was not properly looked after and maintained by being oiled and greased at proper intervals. If the wheel of a motor vehicle is run on a spindle without proper oiling and greasing the spindle is likely to be damaged by excessive wear caused by friction and may break down at a place where its circumference is narrowed down by excessive wear and tear caused by such friction. The defendants could of course escape the liability by showing that although they took good care of the vehicle and the spindle was properly oiled and greased and was not worn out when the accident occurred but broke down on account of a latent manufacturing defect which they could not foresee.
17. It is in this view of things that the maxim res ipsa loquitur, that is, the thing speaks for itself, applies. The lower appellate Court is in error in saying that the maxim did not apply to the present case. The conditions for applying the maxim are, as enunciated in Salmond on the Law of Torts, Sixteenth Edition, Chap. IX Sections 84, 241 at page 242 : '(i) that the thing is shown to be under the management of the defendant or his servants,' and (ii) that 'the accident is such as in the ordinary course of things does not happen if those who have the management use proper care.' The motor bus was undoubtedly under the management of the defendants and spindles of motor buses do not in ordinary course of things break down unless of course the case is of negligence in running the bus. It follows that the fact that the accident was caused by the breaking down of the spindle speaks for itself and shows that the defendants must have been negligent, and the defendants can rebut that inference only by showing that they used all the necessary care and caution and that the accident could not be prevented in spite of the same.
18. The observations of the lower appellate Court that carriers do not insure the passengers against all risks and that the case is of damnum sine injuria are misplaced. A carrier must surely be deemed to have contracted with the passenger whom he undertakes to carry on a motor bus that he will use all reasonable care and caution for ensuring that the passenger reaches the destination safely. Garhwal Motor Owners Union was the carrier in this case, for, the contract of carriage was entered into by it and the vehicles were running under its supervision and control It was the duty of the Union to see that unsafe motor vehicles were not used for carrying passengers booked by it. That follows clearly from the Memorandum and Articles of Association of Grahwal Motor Owners Union Ltd., a copy of which has been filed before me by the learned counsel of that company in this Court, as the original record is reported to have been destroyed, and is at any rate not traceable, on account of the fire which occurred in the record-room of the District Court, Allahabad, Learned counsel for the Union referred me to Clause 25 of the Articles of Association in this context. That article reads as under : 'If any injury is caused to any individual or damage is done to any property by a vehicle of a member of the Company, the member concerned shall be solely and exclusively answerable and responsible for such injury or damage, and the Company shall on no account be held responsible therefor.' The articles constituted a contract between the Company and its members. By a clause such as Clause 25 the Company cannot escape liability so far as third persons are concerned. On the other hand the very first clause, namely, Clause (a) of the objects for which the Union was formed was :
'To organise a fleet of good and efficient motor vehicles for the convenience of the public, and afford all possible facilities for the carrying of goods and for travelling primarily in Garhwal Division.' The running of the vehicles was completely under the control of the Union. The income from the plying of the vehicles was collected by the Union. Separate accounts are, of course, kept for each vehicle and the net income is paid daily or at the end of each month to the member to whom the vehicle belongs after deducting commission of the Union and other expenses incurred by it. The profit and loss in running the vehicle is of the owner but so far as outsiders are concerned the contract of carriage of passengers was entirely between the Union and the passengers. While entering into such contracts the Union did not act as an agent of the owners of the motor vehicles but acted as an independent contractor. It is the duty of the Union to see to it that only road-worthy and good vehicles are plied by if for carrying passengers booked by its agents and servants. That renders G. M. O. U. the first defendant-respondent in the case liable independently of any liability of the second defendant. Of course there is nothing to prevent the Union to pass on its liability to the second defendant and after him his heirs, under the terms of Clause 25 of the Articles of Association, but that is a matter in which the plaintiff is not interested. The plaintiff entered into a contract for his carriage as a passenger from Rudra Prayag to Sri Nagar on 15th Jan., 1950, with G. M. O. U. and can hold it directly liable for damages for the injury caused to his body by the motor accident. Viewed in this light it is clear that the liability of the deceased second defendant-respondent arose because of Clause 25 of the Articles of Association of G. M. O. U. and it would be for the G. M. O. U. to enforce that liability against the heirs of the deceased defendant-respondent 2 by virtue of that clause of the Articles of Association. That being so the liability of the deceased defendant-respondent 2 to compensate the plaintiff cannot be said to be entirely personal or to have come to an end with his death.
19. I must, however, refer to the cases which were cited before me by the learned counsel for the defendant respondents. The first case cited and very strongly relied upon by Mr. Yudhishthira was that of Blanche Edith Gates v. Mongini Bros. : (1917)19BOMLR778 . In that case the plaintiff had gone to the defendants' restaurant to take lunch and sat at a table over which an electric fan was suspended with a rod attached to the ceiling. As the fan was switched off by a waiter on the plaintiff's instructions, it fell with its dynamo on her left hand causing injuries to her hand and fingers. The plaintiff claimed damages for the same. Kajiji, J. who tried the suit held that the fall of the fan was not due to any negligence on the part of the defendant but it was due to a latent defect in the metal of the suspension rod and that the case was of a pure accident. On the question whether the defendants who were keepers of the restaurant could have obviated the accident, the learned Judge held that it was not a case where more than ordinary caution and skill were required from them and that there was no negligence on the part of the defendant and the accident could not have been obviated by exercise of ordinary care, skill and caution on their part. That was a case where the necessary evidence was led by the defendants to show that care and caution taken by them on the basis of which the burden which lay on them was held to have been discharged. In the present case before me no such evidence had been led by the defendants. On the other hand the entire burden of proof has been placed on the plaintiff. The learned Judge in that case remarked that if the injury is caused on account of the defect of motor vehicle, the defendant must show that the defect was one for which he is not to be blamed. This case does not, therefore, help the defendants at all. The next case cited was of Gobald Motor Service Ltd. v. R.M.K. Veluswami : 1SCR929 . Reliance was placed on the observations of the Supreme Court in para 5 of the case particularly the quotation from the English case of Barkway v. South Wales Transport, (1948) 2 All ER 460 (471). The said quotation from Barkway's case also does not advance the defendants' case. It rather supports the plaintiff's case and shows that the lower appellate Court was in error in holding that the maxim res ipsa loquitur was not applicable to the present case. The next case cited was that of the State of Punjab v. Modern Cultivators : 8SCR273 . In this case the Supreme Court found that the loss was occasioned to the plaintiffs by the bursting of a canal bank. It was also found that the canal bank was regularly inspected by the State Government of Punjab. How-ever, on a consideration of the facts of the case, the Supreme Court found that there was sufficient evidence, in the absence of reasonable explanation on the part of the State of Punjab to establish negligence and that there was inordinate delay and negligence is sealing the breach in the canal bank and the Government was rightly held responsible. In Municipal Corporation of Delhi V. Subhagwanti : 3SCR649 the facts were peculiar. The Clock Tower at Chandni Chowk, Delhi, collapsed of its own weight after about 80 years of its existence. The Supreme Court held that the defendant Municipal Corporation of Delhi was liable in damages for the injury caused to the passers-by. It was held that the mere fact that there was fall of the Clock Tower told its own story raising an inference of negligence so as to establish a prima facie case against the Municipal Corporation of Delhi. The case of Indian Trade and General Insurance Company v. Madhukar Govind Rao : AIR1967MP110 was a different kind of case, and is distinguishable on the facts. In Ganjam Collector v. Chandcama Das : AIR1975Ori205 , a man had parked his cycle under the cantilever portico of a government hospital which collapsed while he was there and killed him on the spot. The Court held that the thing told its own story and held the defendant liable in damages. In Smt. Mariyam Jusab v. Hemantlal Ratilal : AIR1982Guj23 it was held that where the motor accident was claimed to have occurred on account of a mechanical failure, the plea could not be accepted merely on the uncorroborated statement of the driver of the motor vehicle and that corroborative evidence ought to have been produced to show that the mechanical failure resulted despite all care and caution. I need not go into the facts of this case or the other reasons given therein but the aforesaid principle is precisely what has been relied upon by me in the light of the ruling of the, Supreme Court in the case of Minu B. Mehta v. Balkrishna Ramchandra Nayan : 2SCR886 .
20. In the result it must be held that the lower appellate Court was in error in holding that the defendants were not liable to any damages for the injury caused to the plaintiff by the accident which occurred on 15th Jan, 1950 to Motor Bus No. U. P. Y. 37 on which he was travelling as a passenger from Rudraprayag to Srinagar. In my view both the defendant-respondents 1 and 2 were clearly liable. The amount of damages has been concurrently found to be Rs. 5,195/- by both the Courts below. The trial Court had decreed the suit for recovery of that amount with proportionate costs and pendente lite and future interest at 3 per cent per annum. However, due to the long period of time over which the suit has remained pending, the devaluation of the rupee by inflation and the high rates of interest prevailing for the last so many years, I think the plaintiff must ,be awarded his full costs throughout and pendente lite and future interest at the rate of 6 per cent per annum on the decretal amount of Rs. 5,195/-.
21. In the result J allow the appeal, set aside the judgment and decree of the lower appellate Court and decree the suit for recovery of Rs. 5,195/- with pendente lite and future interest at 6 per cent per annum and full costs throughout against defendant-respondent I, along with the heirs and legal representatives of deceased defendant-respondent 2.