# KRISHNA BUS SERVICE LTD v. SMT. MANGLI & ORS

- **Citation:** [1976] 3 S.C.R. 178
- **Court:** Supreme Court of India
- **Decided:** 1976-01-21
- **Case number:** Civil Appeal No. 971 of 1968
- **Bench:** R. S. Sarkaria, S. Murtaza Fazal Ali
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/krishna-bus-service-ltd-v-smt-mangli-ors-6748
- **Pages:** 8

## Headnote

Negligence-Vicarious responsibility of the
manage111ent in fatal
u11ury
cases-Presu1nption when arises-Liability is on both the rash and _negligent
driver and the 1nanagen1ent since the driver acted "in the course of its e1n~
ployn1ent".
Duty to care-Absence of explanation by the defendflnts affords reasonable
eride11ce towards contributory ne1diJzence.
C
Maxin1-Res ipsa loquitur-Applies to fatal accident cases 011 road.
D
E
F
G
H
Second appeal-Reappraisal of evidence on record by Supre111c Coun only
in exceptional cases lvhere injustice would result.
One of the buses belonging to the appellant, DLB 5749, driven by
"HS"
enroute to Hissar, while negotiating a turn in village Kheri Siadh overturned,
causing the death of "LWS" and injuries to many. At the time of the fatal
accident, the bus was over-loaded with passengers and goods, driven by ''HS''
at an excessive speed despite protests by the passengers while negotiating a turn.
A suit for damages was filed by the legal heirs of deceased "LWS" against
the driver and the appellant, the liability of the appellant arising out of the fact
of its negligence in employing such a rash and negligent driver who 'was responsible for the accident acting in the course of its employment. The appellant
took the plea of "vis major", there being rain on the fateful day and the breaking of the tie-rod of the vehicle when it fell into a pit and making the bus out
of the controi of the driver.
The suit was dismissed fixing the "quantum damnificatus" at Rs. 34,210/- applying the principle of "quaritum meruit" and on
appeal the Punjab and Haryana High Court held that the accident \Vas due
to negligence attributable to the driver or both the driver and the appellant and
decreed the suit, basing on the cogent and trustworthy evidence of P.Ws. 5, 6
and
8
to
these
facts
(i)
Overload of the bus with
goods
and
passengers;
(ii) ·Wetness and slippery nature of the road d'ue to drizzling
(iii) The expert report of the mechanic to the effect that the "tie-rod" of the
vehicle \vas only ';opened" (dismantled) but not broken a.nd the bad conditions
of the foot-brake and hand brakes; (iv) Factum of negotiating a turn and passing
through the habitation of village Kheri; (v) Zig-zag movement nf the bus and
the fast speed at which the bus was driven despite protests and shouts of the
passengers; (vi) The actual1 speed of the bus at 30 miles per hour at the time
of the accident and (vii) Over turning of the bus resulting in the death of
"LWS" on the spot and injuries to many. The High Court, drawing an adverse
inference against the appellant and the driver for non-appearance in the witness
box held that "inasmuch as bu~es in sol,lnd road worthy condition and driven
with ordinary care do not normally overtime, and in this case the bus did
overturn, the principle of "res ipsa loquitur" applied." The High Court also
awarded a decree for Rs. 21,600/- with proportionate cost as damages against
the appellant and the driver limiting the liabiilty of Rs. 2,000/- onJy against the
insurance company.
On appeal by certificate the appellant contended (i) that it was wrong to
assume that over-turning of the bus was "res ipsa loquitur";
(ii) that it was
wrong to shift the onus on the appellant to show that they were not negligent
and (iii) that in the absence of specific assignment of the reasons by the witnesses
in their evidence the sudden breaking' of the tie rod was the cause of the accident and hence a vis major".
Dismissing the appeal, the Court,
l
•
}'
•
)-..
;
KRISHNA BUS SERVICE v. MANGLI (Sarkaria, !.)
17 9
HELD : ( 1) Ordinarily in second appeal, it is not necessary for the court to
A
reappraise the evidence on record because the first appellate court is supposed
to be the final court of fact.
rt 82El
(2) Buses in sound road worthy condition, driven with ordinary care. do
not normally over-turn. It would be for the driver who had special knowledge
of the relevant facts to explain why the vehicle over-turned.
The maxim
"

## Text

A
B
178
KRISHNA BUS SERVICE LTD.
v.
SMT. MANGLI & ORS.
January 21, 1976
[R. S. SARKARIA AND S. MURTAZA FAZAL ALI, JJ.]
Negligence-Vicarious responsibility of the
manage111ent in fatal
u11ury
cases-Presu1nption when arises-Liability is on both the rash and _negligent
driver and the 1nanagen1ent since the driver acted "in the course of its e1n~
ployn1ent".
Duty to care-Absence of explanation by the defendflnts affords reasonable
eride11ce towards contributory ne1diJzence.
C
Maxin1-Res ipsa loquitur-Applies to fatal accident cases 011 road.
D
E
F
G
H
Second appeal-Reappraisal of evidence on record by Supre111c Coun only
in exceptional cases lvhere injustice would result.
One of the buses belonging to the appellant, DLB 5749, driven by
"HS"
enroute to Hissar, while negotiating a turn in village Kheri Siadh overturned,
causing the death of "LWS" and injuries to many. At the time of the fatal
accident, the bus was over-loaded with passengers and goods, driven by ''HS''
at an excessive speed despite protests by the passengers while negotiating a turn.
A suit for damages was filed by the legal heirs of deceased "LWS" against
the driver and the appellant, the liability of the appellant arising out of the fact
of its negligence in employing such a rash and negligent driver who 'was responsible for the accident acting in the course of its employment. The appellant
took the plea of "vis major", there being rain on the fateful day and the breaking of the tie-rod of the vehicle when it fell into a pit and making the bus out
of the controi of the driver.
The suit was dismissed fixing the "quantum damnificatus" at Rs. 34,210/- applying the principle of "quaritum meruit" and on
appeal the Punjab and Haryana High Court held that the accident \Vas due
to negligence attributable to the driver or both the driver and the appellant and
decreed the suit, basing on the cogent and trustworthy evidence of P.Ws. 5, 6
and
8
to
these
facts
(i)
Overload of the bus with
goods
and
passengers;
(ii) ·Wetness and slippery nature of the road d'ue to drizzling
(iii) The expert report of the mechanic to the effect that the "tie-rod" of the
vehicle \vas only ';opened" (dismantled) but not broken a.nd the bad conditions
of the foot-brake and hand brakes; (iv) Factum of negotiating a turn and passing
through the habitation of village Kheri; (v) Zig-zag movement nf the bus and
the fast speed at which the bus was driven despite protests and shouts of the
passengers; (vi) The actual1 speed of the bus at 30 miles per hour at the time
of the accident and (vii) Over turning of the bus resulting in the death of
"LWS" on the spot and injuries to many. The High Court, drawing an adverse
inference against the appellant and the driver for non-appearance in the witness
box held that "inasmuch as bu~es in sol,lnd road worthy condition and driven
with ordinary care do not normally overtime, and in this case the bus did
overturn, the principle of "res ipsa loquitur" applied." The High Court also
awarded a decree for Rs. 21,600/- with proportionate cost as damages against
the appellant and the driver limiting the liabiilty of Rs. 2,000/- onJy against the
insurance company.
On appeal by certificate the appellant contended (i) that it was wrong to
assume that over-turning of the bus was "res ipsa loquitur";
(ii) that it was
wrong to shift the onus on the appellant to show that they were not negligent
and (iii) that in the absence of specific assignment of the reasons by the witnesses
in their evidence the sudden breaking' of the tie rod was the cause of the accident and hence a vis major".
Dismissing the appeal, the Court,
l
•
}'
•
)-..
;
KRISHNA BUS SERVICE v. MANGLI (Sarkaria, !.)
17 9
HELD : ( 1) Ordinarily in second appeal, it is not necessary for the court to
A
reappraise the evidence on record because the first appellate court is supposed
to be the final court of fact.
rt 82El
(2) Buses in sound road worthy condition, driven with ordinary care. do
not normally over-turn. It would be for the driver who had special knowledge
of the relevant facts to explain why the vehicle over-turned.
The maxim
"res ipsa /oquitur" v.:ould be attracted in such a case. In the present case, the
defendants failed to rebut the presumption of negligence that arose frorn the
manifest circumstances of the case. [184 C-D]
Shya111 Sundar and others v. State of Rajastlian, A.I.R. 1974, S.C. 890, not
applicable.
Barkwav v. South Wales Transport Co. Ltd. [1948] 2 All. E.R. 460, applied.
(3) Viewed in the light of the other circumstances, in the in:sitant case, like
overloading, negotiating of a turn near the village habitation on a slippery road
B
a duty was cast on the driver to go dead slow.
A speed of 25 to 30 miles per
C
hour, in these conditions and in this situation, at the turning of the road would
be imprudently excessive.
[184A-B]
( 4) Had the bus been properly maintained in a sound road worthy condition
and used with due care and driven with due Caution, the tie-rod should not have
broken loose by the fall of the wheel in a pit hardly six inches deep, particularly
when the upward thrust of the water in the pit would have largely absorbed the
shock of the fall.
The pit was in the kacha berm and not right in the mettled
portion. The driver could have with ordinary care and diligence avoided it.
Thus, the breaking of the tie·rod-assuming it did break-was, at best, a neutral
circumstance.
[ 184 B-Cl
(5) In the instant case the driver was admittedly an employee of the appellant-company, and at the relevant time he was acting in tho course of his em·
ployment.
The vehicle was the property of the appellant-company under whnse
managetnent defendaht 3 was working at the material time. It is well settled
that ·where in an action for negligence the thing causing fatal injury to the de-
~eased and consequent pecuniary loss to the plaintiff, is shown to be under the
management of the defendant or his servants and the accident is such as in the
ordinary course of events, does not happen, if those who have the management
use proper care, that affords reasonable evidence, in the absence of explanation
by the defendants, that the accident arose fro1n want of care. The appellant·
con1pany was, therefore, fully liable for the negligent act of their emplovee and
the injury resulting therefrom.
{185 D-F]
·
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 971 of 1968
From the judgment and decree dated the 10-5-1965 of the Punjab
High Court at Chandigarh in R.F.A. No. 181 of 1957.
S. K. Mehta, K. R. Nagaraja and P. N. Puri for the appellant.
V. M. Tarkunde, !. P. Agarwal and Miss Manik
Tarkunde
for
respondents 1-6.
The Judgment of the Court was delivered by
SARKIRIA, J.-This appeal on certificate is directed against a judgment of the High Court of Punjab and Haryana awarding to
the
plaintiff-respondents a decree for Rs. 21,600.
It arises out of these
facts:
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On January 21, 1955, Lala Wazir
Singh
deceased, a retired
H
Divisional Engineer (Railways) was travelling from Delhi to Hissar
by a bus belonging to the Krishna Bus Service Ltd. (hereinafter referred to as the Company).
On the way, the vehicle went out of order.
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SUPREME COURT REPORTS
[1976] 3 S.C.R.
Lala Wazir Singh and some other passengers were then transferred
to another bus No. DLB 5749 belonging to the same Company. This
bus was being driven by Harbans Singh, defendant 3 (Respondent
8 hercm) who was an employee of the Company, acting under its
directions and instructions.
When at about 3 p.m., this bus was negotiating a turn in village Kheri Sadh, a few miles from Rohtak, it overturned, causing the death of Lala Wazir Singh, at the spot and injuries to several other passengers.
The widow, the sons, the daughters, the grandsons and granddaughters of the deceased instituted a suit in the court of the Subordinate Judge, 1st Class, Rohtak for the recovery of Rs. 50,000 as
damages for the loss caused to them on account of his death.
The
Company was impleaded as defendant No. 1, the Insurance Company
was joined as defendant No. 2 and the driver of the bus as defendant
3.
It was alleged that the accident causing the death of Lala Wazir
Singh, occurred on account of the negligence of defendants 1 and 3.
The bus, it was pleaded, wa~ not in proper order; it was overloaded
with passengers and goods, and despite these facts, defendant 3 drove
it at a very high speed while it was negotiating a turn.
The liability
of the employer Company was sought to be fixed on the ground that
it was negligent in employing such a 1:ash and negligent driver
and
that the accident occurred when defendant 3 was acting in the course
of its employment.
In their written statement presented on July 16, 1956, the Company admitted that the bus involved in the accident belonged to it and
at the time of the accident it was driven by their employee, defendant
3.
In regard to the allegations of negligence, the Company replied:
"The accident alleged by the plaintiffs was not due to
any negligent or careless driving of Harban> Singh Driver
of the vehicle owned by the defendant but was vis major.
There was rain on that day and the front was slippery.
The
bus overturned and the death of the said Wazir Chand
(Singh) was in no case the result of overturning of the Bus."
While finding that the death of Lala Wazir Singh had occurretl
on account of injuries sustained by him in the accident in question,
the trial court held that the accident took place "on account of the
breaking of the tie-rod of the vehicle due to which the bus went out
of the control of the driver".
The tie-rod, according to
the trial
court, broke becanse the front left wheel of the vehicle while it was
negotiating a turn, fell into a pit.
The court further held that the
vehicle was not overloaded and its speed at the time of the accident
was not more than 20 or 25 miles per hour, and as such, was not
excessive.
On these premises, the trial court concluded that
the
plaintiffs had failed to prove that the accident involving fatal injuries
to the deceased, was due to rash or negligent driving by defendant
No. 3.
It further held that in case Issues 1 and 2, were decided in
favour of the plaintiffs, the maximum damages awardable to
them
would be Rs. 34,210, i.e., the amount of pension which the deceased
would have earned, bad he been alive for 9 years and 2 months after
the accident.
\
/'
•

KRISHNA BUS SERVICE v. MANGLI (Sarkaria, /.)
18 l
On· these findings, the trial. court dismissed the suit leaving the
parties to bear their own costs.
Aggrieved, the plaintiffs preferred an appeal to the High . Court.
The Division Bench who heard the appeal, has. after appraising the
evidence on record, reversed the findings of the trial court and held
that "the accident was due to negligence attributable to defendant 3
or both defendm;its l and 3".
This finding of negligence recorded by the High Court is based
on facts appearing in the evidence of PWs .. 5, 6 and 8 who were
found by it to be entirely trustworthy.
These facts are : (i) The
bus was overloaded with goods and . passengers.
There were 60 or ·
62 passengers including 10 or 12 children, in it (vide PWs 5 and 6) .
(ii) It was drizzling; the road was wet and slippery (vide P.Ws. 5 and
6); (iii) The tie-rod of the bus was not found
broken but only
"opened" (dismantled) when it was examined by the expert motor
mechanic, PW 8, on the day following the accident ·The hand brake
and the foot-brakes were also found in a bad condition; (iv) At the
time of the accident the bus was negotiating a tum and passing
through the habitation of village Kheri; (v) Immediately before the
•
accident the bus was making a zig-zag movement and was being driven
at fast speed despite the protests and shouts of the passengers asking
the driver to slow down; (vi) the speed of the bus at the material
time, according to PW 6, was about 30 miles per hour; (vii)
The
bus overt\1me<l as a result of which Lala Wazir Singh died at the spot
'\ and other passengers, including PW 5, received serious injuries.
,
The High Court further reinforced its finding with an adverse
....
inference against the defendants drawn from the fact that the driver
(defendant 3) who knew best the relevant facts, did not appear in
the witness-stand to explain the circumstances in which the accident
..
occurred.
In this connection it observed :
·
·
"Buses do not, in such circumstances, normally and in
the ordinary course, turn
turtle. . The
transaction . thus
speaks for itself : in other. words res ipsa loquitur and in
the absence of explanation· by defendant No. 3 and his employer, defendant NC). 1 the established facts and circumstances accompanying the
fatal
injury caused
to
the
deceased clearly raise a presumption or. at least permit an ·
inference of negligence on the part of
defendant No. 3
The Court below was thus clearly wrong
in negativing
negligence on the part of defendant No. 3.
I would accordingly reverse the conclusion of the court
below on this point and hold that the accident was due to
the negligence of defendant No. 3 and was not inevitable
which could not be obviated by ·ordinary care, caution and
skill on his part."
On the above .facts and the· premises, the High Court ·concluded
!hat the accident was due to the negligence of the driver and was
"not inevitable which could not be obviated by ordinarv ca••. caution
and skill on his part". In the result,_ it awar9ed a decree for Rs. 21,600
A
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D
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F
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18 2
SUPREME COURT REPORTS
[1976] 3 S.C.R.
A
as damages against defendants 1 and 3 proportionate costs, limiting
the liability of the Insurance Company, defendant No. 2 to Rs. 2,000
only, plus proportionate costs.
B
c
D
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Hence this appeal.
It is an undisputed fact that Lala Wazir Singh died in the
bus
accident on 21.1.1955. It is further common ground that the bus
while negotiating a turn, had overturned causing fatal injuries to the
deceased, and that at the relevant time it was being driven by Harbans
Singh defendant, an employee of the appellant Company. It is also
admitted that the bus belonged to the appellant-company.
The only
issue in controversy is, whether the accident involving the death of
L. Wazir Singh, was caused due to the negligence of defendant 1 or
both defendants 1 and 3.
Mr. Mehta, appearing for the appellant contends that the High
Court while conceding that the plaintiffs' witnesses were not -able to
assign the reason for the accident, wrongly spelled out negligence on
the part of the driver from the bald circumstance that the bus had
overturned.
It is submitted that the High Court committed an error
of law inasmuch as it assumed that the overturning of the bus was
res ipsa loquitur and had shifted the burden on the defendants to show
that the accident and the consequent death of L. Wazir Singh was
not due to their negligence. It is submitted that res ipsa loquitur is
merely a Latin phrase and does not convey
any
legal
principle.
Reliance has been placed on this Court's decision in Shyam Sunder
and ors. v. State of Rajasthan(\).
Mr. Mehta further maintains that
the trial court had correctly held on the basis of evidence on record,
that the accident occurred due to the sudden breaking of the tie-rod
and not due to any negligence on the part of the driver.
To us, none
of these contentions appears to be well founded.
Ordinarily, in Second Appeal it is not necessary for this Court to
reappraise tbe evidence on record because the first appellate court is
supposed to be the final court of fact.
Nevertheless, on the insistence
of the Counsel for the appellant, we have examined the evidence on
the record.
We have no hesitation in holding, in agreement with the
High Court, that the evidence
rendered by PWs 5, 6 and 8 was
reliable and cogent enough to establish facts which, in their totality,
unerringly point to the conclusion that the accident was due to the
negligence of the driver, defendant No. 3.
Kali Ram, PW 5, was one of the passengers in the ill-fated bu~.
He, also, received injuries in the accident.
For treatment of his
injuries be remained in hospital for twenty days.
He was therefore
supposed to have personal knowledge and experi~nce of the circumstances in which the accident occurred.
He testlfied that the
bus
was overloaded, and the driver unheeding the protests and shouts of
the passengers to go slow, was driving it at a fast s~eed.. He further
stated now near village Kheri, the vehicle after makmg zig-zag movements overturned causing the death of one passenger at the spot and
injuries to the witness and other passengers.
(I) A!R 1974 SC 890.
KRISHNA BUS SERVICE V. MANGLI (Sarkaria, J.)
18 3
Subedar Ram Kishan, PW 6, is a retired Army Officer and knows
motor-driving.
His house is just near the place of the accident.
According to his estimate, the speed of the bus, while it was negotiating the turn, just before the accident, was 30,miles per hour and it was
moving in a zig-zag manner, being not in the control of the driver.
Jn cross-examination, the witness accepted a suggestion put by the
defence, and stated that in his presence, the driver had told the police
that the accident had occurred due to the breaking of the tie-rod. The
witness further conceded that there was pit by the side of the road,
but repelled the suggestion that the tie-rod could be broken by a sudden
jerk at the turning.
Raghbir Singh PW 8 was a motor mechanic.
He examined the
bus at the site on the 22nd January.
According to him, the tie-rod
had not broken down, but had been "opened", implying that it had
been subsequently tampered with.
The witness found that the handbrake and foot-brakes of the vehicle were in a bad condition.
He did
not find the pipe of the hydraulic foot-brake in a broken condition.
For its finding that the accident had taken place on account of the
breaking of the tie-rod of the vehicle, the trial court sought support
from the evidence of PW 5 and DW 6.
It is manifest that correctly
read, the evidence of PW 6 does not justify that conclusion.
The
mere fact that sometime after the accident during police investigation,
the driver came out with the story that the accident occurred due to
the breaking of the tie-rod, was no ground to believe, without demu,·,
that such breaking was the cause of the accident.
The evidence of
the expert, DW 6, was dogmatic and worthless.
His opinion was
not based on an examination of the vehicle and was rightly rejected
by the High Court.
On the other hand, the testimony of PW 8 who
bad examined the vehicle one day after the accident: was quite convincing, and it could reasonably lead to the conclusion that the tie-rod
of the vehicle had been tampered with an
untied
sometime after
the accident.
The defendants led oral evidence to prove that near the place
of the accident, there was a pit in the road, and when the bus was
negotiating a turn, its front wheel fell in that pit, and as a result of
this fall, the tie-rod end of the steering wheel broke loose and the bus
went out of control.
In the first place, DWs 2 and 3, who were examined to substantiate this story, did not say that the wheel of the bus had fallen in
that pit. Secondly, the story of this pit and the breaking of the tierod, was not even faintly adumbrated in the written statement.
It
was subsequently developed as an after-thought.
Even if it is assumed for the sake of argument that one wheel
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of the bus had fallen into the pit, and the resultant shock broke the
tie-rod causing the vehicle to go out of control, then also that would
not, when viewed in the light of the other circumstances of the case
negative the inference of negligence on the part of defendants l and
H
3.
The pit was according to Gordhan, DW 2, hardly four feet in
J3-L390SCJ/76
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184
SUPREME COURT REPORTS
(1976] 3 S.C.R.
length and 6 inches deep.
It was not in the mettled part of the road
bl!t in the kacha berm.
The bus was negotiating a turn. ·There,
the road runs through the habitation of a village.
It was drizzling
and the road v.as wet and slippery. The speed of the bus at the relevant
time, according to PW 6, was 30 miles per hour, and according io
DWs 2, 4 and 5, Jt was 25 miles per hour.
The bus was overloaded.
In these peculiar circumstances, a duty was cast on the driver Lo go
dead slow.
A speed of 25 to 30 miles per hour, in these conditions
and in this situation, at the turning uf th~ road, would be jrnprlidcntiy
excessive.
Had the bus been properly maintained in a sound 'roadworthy condition, and used with due care and driven with due caution,
the tic-rod should not have broken loose by the fall of the wh.cel in
a pit hardly six inches deep, particularly when the upward truust of
the water in the pit would have largely absorbed the shock of the
fall.
The pit was in the kacha berm and not right in the mettled
portion.
The driver could have with ordinary care and
diligence
avoided it.
Thus, the breaking of the tie-rod-assuming it did break
-was, at best, a neutral circumstance.
As rightly pointed out by the High Court, buses in sound 'roadworthy condition, driven with ordinary care, do not norm,;lly overturn.
It would be for the driver who had special knowledge o! the.
relevant facts to explain why the vehicle overturned.
The maxim
res ipsa loquitur would be attracted to such a case.
Defendants 1
and 3 had failed to rebut the presumption of negligence that· arose
from the manifest circumstances of the case.
·
In Barkway v. South Wales Transport Co. Ltd. (1) a motor omniE
bus loaded with passengers was passing through a village when the
off-side front tyre burst; the omnibus went over to the off-side of the
road, mounted the pavement, crashed into some railings, and feU down
an embankment, killing four of the passengers, including the plaintiff's
husband.
On these facts, Asquith L.J. summarised the position as to
the onus of proof thus :
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"If the defendants' omnibus leave 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 tlie
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 this omnibus
leaving the road is a tyre-burst, since a tyre-burst per se is
a neutral even consistent,
and
equally
consistent,
with
negligence
or
due
diligence
on
the
part
of
the defendants.
When a balance has been tilted 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.,
where not a tyre-burst but a skid was involved.
(1)(1948] 2 All-E-.-R-:460.
>
•.
KRISHNA BUS SERVICE v. MANGLI (Sarkaria, /.)
185
(iii) To displace the prcsumpticm, the defendants must
go further and prove (or it mnst 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."
The above observations apply with greater force to the facts of
the present case.
Sh yam Sunders case (supra), cited by Mr. Mehta docs not advance his case.
There, the radiator of the vehicle was getting heated
frequently and the driver was pouring water therein alter every 6 or
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7 miles of journey.
It took the vehicle 9 hours to cover a distance
c
of 70 miles and thereafter it suddenly caught fire.
On these facts this
Court, speaking through Mathew J ., held that there was some defect
in the mechanism and the driver was negligent in putting the vehicle
-0n the road.
Since the driver could not explain tl)c cause of the
accident which was within his exclusive knowledge and it was not
possible for the plaintiff to give any evidence as to the cause of the
accident, the maxim res ipsa /oquitur was attracted to the case.
D
Coming back to the instant case, it may be observed that the driver
was admittedly an employee of the appellant-Company, and at the
relevant time he was acting in the course of his employment.
The
vehicle was the property of the appellant-Company, under
whose
management defendant 3 was working at the material time.
It is well
settled that where in an action for negligence the thing causing fatal
injury to the deceased and consequent pecuniary loss to the plaintiff, is
shown to be under the management of the defendant or his servants
and the accident is such as in the ordinary course of events does not
happen, if those who have the management use proper care,
that
affords reasonable evidence, in the absence of explanation by
the
defendants, that the accident arose from want of care.
The appellant-Company was therefore fully liable for the negligent
act of its employee and the injury resulting therefrom.
No other point has been argued before us.
l n the light of all that has been said above, the appeal fails and
is hereby dismissed with costs.
S.R.
Appeal dismissed.
E
F