(1) The facts giving rise to this second appeal from order may be state as under. Shrimati Soman Devi, the plaintiff-respondent, had filed a suit for the recovery of Rs. 5,000/-, as damages on account of the death of her husband Om Prakash. The deceased was travelling in a motor vehicle belonging to defendants Nos. 1 to 3 and it was driven by defendant No. 4 Mast Ram as the driver. It could not negotiate a curve and fell into a khad. The motor vehicle in question No. PNF 847 is 1943 model of Chevrolet station wagon and was registered as a private carrier and belonged to Sohan Lal and his two sons Parmeshwari Das and Om Prakash defendants. On 29th of November, 1953,according to the plaintiff's case, this vehicle was proceeding from Banjar to Aut in Kulu hills. It carried thirteen passengers and an equal number of bags of potatoes weighing approximately twenty-six maunds. The accident took place after the motor vehicle had traversed a distance of about seven miles from Banjar. On a curve the steering wheel became free and the vehicle fell into the khad seventy feet below. The plaintiff's husband Om Prakash who was one of the passengers and Ishru a cleaner died instantaneously. Saling Ram, another passenger, died some later and other passengers were injured. On 6th of November, 1954, the plaintiff brought a suit for the recovery of Rs. 5,000/-. On the pleadings of the parties, the following issues were framed:--
(1) Whether the Court has jurisdiction to entertain the suit against defendant No. 1.
(2) Whether the plaintiff is the widow of Om Prakash deceased
(3) Whether vehicle No. PNF 847 was owned by defendants Nos. 1 to 3 at the time of the alleged accident.
(4) Whether the accident, as a result of which Om Prakash died, occurred as a result of the negligence of the defendants.
(5) What damages, if any, has the plaintiff suffered as a result of the accident in suit?
(2) The trail Court found that the Court had jurisdiction, that the plaintiff was the widow of Om Prakash deceased, and that the vehicle in question was jointly owned by defendants Nos. 1 to 3. On issue No. 4, which is the material issue now, the defendants were absolved from any Act of negligence and the suit was accordingly dismissed, leaving the parties to bear their own cots.
(3) The plaintiff preferred an appeal. The Additional District Judge disagreed with the conclusion of the trial Court on issue No. 4 and found that the accident was due to the negligence of the defendants. He accepted the appeal, set aside the judgment and decree of the lower Court and remanded the case to the trial Court for final decision after giving a finding on issue No. 5.
(4) The defendants have filed the present appeal from the above order of the Additional District Judge and have contended that on the proved facts of this case, inference as to negligence cannot be drawn and the defendants were in no way negligent and therefore liable to damages.
(5) The proved facts of this case are that the tiered, which connected the steering wheel with the wheels of the car, had become loose and therefore it was not possible for the driver to steer the car and negotiate the curves. Whether overloading of the car had caused the steering wheel to become free or the tierod became loose in consequence of weal and tear, appears to me beside the point. The real question in this case is that the deceased was an invitee in the vehicle and under the law the defendants owed certain duties to take proper care as to the soundness of the mechanism and the roadworthiness of the vehicle. It is the duty of a person in charge of such a vehicle to see that it s under proper control and this involves a duty to keep it in proper condition so that proper control can be exercised. There is imposed upon the owner of a vehicle the duty to take such steps as a prudent owner would take to keep his vehicle in a proper state of repair. If he fails to take such care and allows the vehicle to become defective as when the steering of a motor car becomes so worn that the driver cannot control the car that will be evidence of negligence on his part.
(6) It was held by Darling, J., in Hutchins v. Maunder, (1920) 37 TLR 72, that where a motor car which had its steering gear, by reason of wear, in such imperfect condition that the driver was liable to lose control of the steering, was a thing which on a highway was necessarily dangerous to persons using the highway, and to cause the vehicle to be driven on a highway amounted to negligence even in the absence of knowledge of the defect.
(7) In this case the imperfect condition of the tierod could have been discovered by taking proper precautions which was not done. Under these circumstances, it is difficult to absolve the defendants from the charge of negligence.
(8) The defendants, in the case of motor, vehicles, are required to see not only that the vehicle is in a roadworthy condition before it is used on the road but also to see that it is not overloaded. The defect in the tierod is evidence on which, in the absence of satisfactory explanation, negligence on the part of the defendants can be rightly found. Of course, the defendants would not be considered to be at fault if despite having exerted proper care and skill the defect could not be discovered.
(9) There was some irrelevant controversy as to whether the deceased was being conveyed for reward or gratuitously. The liability remains unaffected in either case. A person is bound to exercise due and reasonable care even if he was conveying another in his vehicle gratuitously.
(10) In the circumstances of this case, the doctrine of res ipsa loquitur fully to the facts of this case. the burden of proving inevitable accident is upon the defendants. They must either show what was the cause of the accident and as a result of that cause the accident was inevitable. They may even show all the possible cause, one or the other of which produced the effect and must further prove with regard to everyone of these possible causes that the result could not have been avoided. The defence of the inevitable accidental is not sustainable on the facts of this case.
(11) The accident in question in my view is not due to a latent defect which could be said not to be discoverable by reasonable care. If the defect was of such a character that no skill, care or foresight could have detected its existence, the defendants would be free from blame. The defendants need not insure that the vehicle, in which the deceased was travelling, was in all respects perfect for its purpose and was free from all defects likely to cause peril, but a high degree of duty is owned by a carrier to the passenger.
(12) Erle. C. J., in Scott v. The London and St. Katherine Docks Co., (1865) 3 H and C. 596 (601) 159 ER 665(666), stated the rule in the following words:--
'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.'
(13) In Barkway v. South Wales Transport Co., Ltd., (1948) 2 All ER 460, an omnibus went over to the off-side of the road, mounted the payment, crashed into some railings, and fell on its side down an embankment on to some railway trucks, killing four of the passengers and injuring others. It was held that the fact that the omnibus left the road and fell down the embankment raised a presumption of negligence against the defendants, requiring them to prove affirmatively that they had exercised all reasonable care. The rule of law was stated by Asquith, L. J., in the following words:--
'The position as to onus of proof in this case seems to me to be fairly summarised in the following short propositions. (i) If the defendants' omnibus leaves the road and falls down an embankment, and this without more is proved, then res ipsa loquitur, there is a presumption that the event is caused by negligence on the part of the defendants, and the plaintiff succeeds unless the defendants can rebut this presumption. (ii) It is no rebuttal for the defendants to show, again without more, that the immediate cause of the omnibus leaving the road is a tyre-burst, since a tyre-burst per se is a neutral event consistent, and equally consistent, with negligence or due diligence on the part of the defendants. When a balance had been titled one way, you cannot redress it by adding an equal weight to each scale. The depressed scale will remain down. This is the effect of the decision in Laurie v. Raglan Building Co., Ltd., (1941) 2 All ER 332, where not a tyre-burst but a skid was involved. (iii) To displace the presumption, the defendants must go further and prove (or it must emerge from the evidence as a whole) either (a) that the burst itself was due to a specific cause which does not connote negligence on their part but points to its absence as more probable, or (b), if they can point to no such specific cause, that they used all reasonable care in and about the management of their tyres.'
(14) The above two rulings were cited with approval in Gobald Motor Service Ltd. v. R. M. K. Velusami, AIR 1953 Mad 981.
(15) In this case the two constituents which require substantiation in a cause of action for negligence have been proved. Firstly a duty was imposed upon the defendants towards the person who was being conveyed in the vehicle, and secondly there was a careless Act in so far as a defect, which could have been discovered by the exercise of ordinary care, was not detected. The circumstances under which the maxim res ipsa loquitur applies are proved to exist. This rule raises a presumption of fault against the defendants which the latter have not been able to overcome by contrary evidence. The defendants have not shown either that in fact there was no negligence on their part, or that the accident might more probably have happened in a manner which did not connote their negligence. In my view, if requisite care had bestowed on the vehicle, the tragedy that took place might have been averted.
(16) Whether the accident was occasioned in consequence of overloading or as a result of tierod having become defective due to wear and tear, the liability of the defendants in either case is inescapable. In this case it has not been shown that the defendants had subjected the vehicle to periodical examination or had tried to ascertain defects from time to time. Mast Ram, the driver of the vehicle, did not choose to appear as a witness and we are left with no explanation as to how the car got out of control. The burden that the law places upon the defendants in such a case has, therefore, not been discharged. The circumstances clearly show that the accident could have been avoided if proper care had been taken before staring the journey from Banjar.
(17) The lower appellate Court has believed the evidence on the record that the vehicle was overloaded as alleged by the plaintiff's witnesses and I think rightly. Defendant Sohan lal, D.W. 8, has admitted that the vehicle could not be steered at the place of the accident where there was a bend in the road.
(18) After giving careful thought to the arguments of the learned counsel, I am satisfied that the lower appellate Court came to a correct conclusion. In the result, the appeal fails and is dismissed. There will be no order as to costs. The Court-fee paid in excess may be refunded.
(19) Appeal dismissed.