BASTHI KASIM SAHEB (DEAD) BY L.RS.versusMYSORE STATE ROAD TRANSPORT CORPORATION AND ORS.

                                                                                  .......
                BASTHI KASIM SAHEB (DEAD) BY L.RS.
A
                                         v.
    MYSORE STATE ROAD TRANSPORT CORPORATION AND
                        ORS.

                             NOVEMBER 12, 1990
B
          [M.H. KANIA AND LAUT MOHAN SHARMA, JJ.)

          Motor Vehicles Act: Section JJOA-Resipsa loquitur-App/i-
    cability of-Whether driver of vehicle acts with due care-To be
    ascertained from facts of case.
c         The appellant was travelling in a bus belonging to the Mysore
    State Road Transport Corporation when the bus was involved in an
    accident resulting in serious injuries to the appellant.

          The appellant claimes Rs. 75,000 as compensation. The respon-
D   dents resisted the claim inter alia on the ground that the accident did uot
    happen as a result of rash and negligent driving, but was just a case of
    an unfortunate accident in which no responsibility could be fastened on
    anybody.

          The Motor Accidents Claims Tribunal accepted the case of the
E   claimant that the accident took place on account of rash and negligent
    act ofthe driver, but allowed the claim for Rs. 35,000 only.

         Both the appellant and the Road Transport Corporation filed
    appeals. The High Court, however, agreed with the respondents that
    the bus was not driven at high speed and it was just a case of an
F   unfortunate accident in which no responsibility could be fastened on
    anybody.
                                                                                  •
          Before this Court it was contended on behalf of the appellant that
    the High Court wrongly assumed that the bus was not driven negli-
    gently and with a high speed.
G
         Allowing the appeal, setting aside the judgment oftbe High Court
    and restoring the decree passed by the Trial Court, this Court,

           HELD: (1) While driving on a good wide multi-lane road, it may
    be permissibble to drive a vehicle at a comparatively higher speed but,
H   it will be highly unsafe to do so when circumstances are not favourable.

                                       658
                              BASTHI v. M.S.R.T.C. [SHARMA. J.]                  659

          The question whether a driver bas been acting with due care is to be
                                                                                        A
          judged in that background. [661D-E]

                (2) The evidence in the case indicates that there was no traffic on
          the road at the time of the accident. No untoward incident took place
          like sudden failure of the brakes or an unexpected stray cattle coming in
          front of the bus, and still the vehicle got into trouble. In absence of any   B
          unexpected development it was for the driver to have explained how,
          this happened, and there is no such explana,ion following. In such a
   -;,.   situation the principle of res ipsa loquitur applies. [662A-B]

                (3) The burden in such a situation is on the defendant to show
          that the driver was not negligent and that the accident might, more
          probably, have happened in a manner which did not connote negligence          c
          on bis part, but the defence has failed to produce any evidence to
          support such a possibility. [662C]

               CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
          2097-98 of 1974.                                                              D

               From the Judgment and Order dated 9. 11. 1972 of the Mysore
          High Court in Misc. First Appeal Nos. 15 and 37 of 1968.

              S.S. Javali, H. Raghavendra Rao, Tripura Rao and Vineet
          Kumar for the Appellants.                                                     E

               K.R. Nagaraja, M. Veerappa and Nobin Singh for the Res-
          pondents.

                The Judgment of the Court was dellvered by.
                                                                                        F
                SHARMA, J. These appeals by special leave are directed against
          the decision of the Mysore High Court rejecting the claim of the appel-
          lant, Basthi Kasim Saheb, for compensation under s. llOA of the
          Motor Vehicles Act. After the death of the appellant his legal rep-
          resentatives have been substituted in his place.
                                                                                        G
                .2. The incident in question took place on 2nd July, 1964 at about
          12.15~.m. on the road between Mangalore and Bhatkal. The appel-
          lant was travelling by a bus belonging to the Mysore State Road Trans-
'. ,,     port Corporation running on the route Byndoor to Bhatkal. The bus
          was involved in an accident when it reached Suregahalla resulting in
          serious injuries to the appellant. After a considerable period of             H
    660        SUPREME COURT REPORTS               [ 1990] Supp. 2 S.C.R.

    hospitalisation he recovered, but the recovery was not full and comp-
A
    lete and he claimed a sum of Rs. 75,000 (Rupees seventy five thousand
    only) as compensation. The application was resisted both by the Road
    Transport Corporation and the Mysore Government Insurance
    Department, Motor Branch. Their case is that the accident did not
    happen as a result of rash and negligent driving of the driver, and in
B   any event the claim was excessive.

          3. The Motor Accidents Claims Tribunal accepted the case of
    the claimant that the accident took place on account of rash and negli-
    gent act of the driver but, did not agree with him on the amount to be
    decreed. The claim was partly allowed for a total sum of Rs.35,000
    (Rupees thirty five thousand only) with costs and interest. Two ap·
c   peals were filed against this judgment-one by the Road Transport
    Corporation and the other on the question of quantum by the
    appellant.

           4. According to the defence the road while approaching Sure-
D   gahalla was on an up-gradient and on reaching Suregahalla a down-
    gradient. The driver of the bus, while reaching the top point, had
    observed a bullock-cart standing unattended at some distance on the
    left side of the road, and he had, therefore, to take the bus towards     Ill"
    right; and accordingly when wheels of the bus went beyond the metal
    portion of the road, they sank in the muddy soil due to the weight of
E   the bus and the vehicle toppled on its right side. The plea is that the
    bus was not driven at a high speed as wrongly asserted in the claim
    petition and it was just a case of an unfortunate accident in which no
    responsibility can be fastened on anybody. The High Court agreed
    with the respondents and dismissed the claim petition. The appeal of
    the Corporation was accordingly allowed and that of the claimant
F   dismissed. This judgment is now under challenge before this Court.

          5. Mr. Javali, the learned counsel for the appellants has con-
    tended that the High Court wrongly assumed that the bus was not
    driven negligently and with a high speed, and claimed that the case of
    the claimant was fully established by the evidence on the record.
G
         6. The sub-Inspector of Police, P.W. 6, who visited the place of
    occurrence soon after the accident prepared a sketch map which has
    been admitted in evidence as Ext. A-4. He had also drawn up a
    panchanama attested by witnesses, Ext. A-5. The map shows that the
    unattended bullock-cart was standing on the left flank, sixteen feet      "      l
H   wide and no part of it ivas on metalled portion of the road which was
;!_
                         BASTH! v. M.S.R.T.C. [SHARMA, J.]                 661

       twelve feet in breadth. The right flank was, however, only eight feet      A
       wide. The driver of the bus, R.W. I, attempted to suggest that the
       bullock-cart occupied a portion of the tarred part of the road, which
       does not appear to be correct. However, even if we assume in favour
       of the respondents that in view of the bullock-cart being parked on the
       road it was necessary for the driver to have taken the bus on the right    B
       flank, the crucial question which remains to be answered is as to
       whether while so doing he had slowed down sufficiently for the vehicle
       to remain under control.
 "'-
             7. It has been established by the evidence in the case that in the
       rainy season the unmetalled portions of the road were used to be
       rendered slushy and muddy, and that, it had been actually raining for      c
       sometime. The driver, R. W. l, was serving this route for about four
       months before the acCident and it cannot, therefore, be suggested that
       he had no idea of the risk involved in driving down the vehicle on to
       the muddy portion, requiring special attention and considerable slow-
       ing down of the speed. The question as to whether the bus was being
                                                                                  D
       driven rashly or not must be answered in this context. While driving on
       a good wide multi-lane road, it may be permissible to drive a vehicle at
....   a comparatively higher speed but, it will be highly unsafe to do so
       when circumstances are not favourable. The question whether a driver
       has been acting with due care is to be judged in that background. If the
       evidence in the present case is examined it leads to the irresistible
                                                                                  E
       conclusion that the dirver was driving the bus rashly. The petitioner
       Basthi Kasim Saheb stated in his evidence that the bus was being
       driven at a high speed, which was not reduced by the driver after
       seeing the cart. The other evidence laid on behalf of the claimants also
       supports this version. Albert Dias, P. W. 10, opined that the bus was
       proceedlng at a speed of forty miles per hour and that if the driver had
   '   slowed down putting the vehicle in a lower gear he could have passed
       without going over the mud portion of the road. It is also established
                                                                                  F

       by evidence that the fact that the mud portion of the road was soft and
       not well-settled was known to everybody. The driver of the bus, Alji
       Abdulla, R.W. 1, admitted in paragraph six of his deposition that he
       was driving the bus in the third gear right from the place the road
                                                                                  G
       proceeded on down-gradient and he continued driving in the third gear
       even at the time of the accident. This means that there was no attempt
       to slow down while going from the tarred portion to the mud portion.
       This part of the statement of the driver in the cross-examination sup-
  •    ports the petitioner's evidence which have been accepted by the trial
       court as proving rash and negligent conduct on the part of the driver.
                                                                                  H
    662         SUPREME COURT REPORTS               [ 1990] Supp. 2 S.C.R.

A         8. The evidence in the case i.ndicates that there was no traffic on
    the road at the time of the accident. No untoward incident took place
    like sudden failure of the brakes or an unexpected stray cattle coming
    in front of the bus and still the vehicle got into trouble. In absence of
    any unexpected development it was for the driver to have explained
    how this happened and there is no such explanation forthcoming. In
B
    such a situation the principle of res ipsa loquitur applies. The peti-
    tioner, in the circumstances, could not have proved the actual cause of
    the accident, and on the face of it, it was so improbable that such a
    accident could have happened without the negligence of the driver,
    that the Court should presume such negligence without further evi-
    dence. The burden in such a situation is on the defendant to show that
c   the driver was not negligent and that the accident might, more prob-
    ably, have happened in a manner which did not connote negligence on
    his part, but the defence has failed to produce any evidence to support
    such a possibility. We, therefore, agree with the finding of the trial
    court on this issue and set aside the judgment of the High Court.
D          9. The trial court has given good reasons supported by evidence
    for its assessment of the compensation amount had the learned counsel
    for the appellants has not been able to suggest any acceptable ground
    to interfere with the same. We, therefore, set aside the decision of the
    High Court and restore the decree passed by the trial court. The ap-
    peal is accordingly allowed but, in the circumstances we direct that the
E   parties shall bear their own costs of the High Court and of this Court.

    R.S.S.                                                  Appeal allowed.



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