DAMODARAN Vs. STATE OF KERALA
LAWS(KER)-1968-1-12
HIGH COURT OF KERALA
Decided on January 29,1968

DAMODARAN Appellant
VERSUS
STATE OF KERALA Respondents

JUDGEMENT

- (1.) THE accused is the revision petitioner. He is a driver attached to the "rani Motor Service". On 24-1-1967 at about 8 p. m. he was driving a bus, KLR. 4262 from west to east on the Athirampuzba-Ettumanoor road. At the junction where the said road joins Kaipuzha-Ettumanoor road, the bus knocked down a pedestrian, one Devassia aged 65. Serious injuries were sustained by Devassia and he was immediately removed to the hospital where he died on 121967. THEre was a festival going on in the Athirampuzha church on the date of incident and both the roads (Athirampuzha-Ettumanoor road, and kaipuzha-Ettumanoor road) were busy with people going to and returning from the church. Special traffic control arrangements were made for the day and so the buses coming from Ettumanoor side were diverted at the junction along the kaipuzha road and the accused's defence is that on account of this traffic arrangement, people who came to the junction, all on a sudden had to turn towards the south and in this helter-skelter movement of the people, deceased devassia happened to collide with the bus, and in spite of the extra care taken, the driver could not avoid the collision.
(2.) LEARNED counsel appearing for the revision petitioner contended that the accused was driving his vehicle at normal speed only, and that being the case, neither rashness nor negligence can be inferred from his conduct and there is no evidence also from which the speed of the vehicle at the time could be gauged Rashness does not depend on speed alone. Reckless driving or driving in a manner dangerous to public life, is rashness. The condition of the road and the amount of traffic at the time or which might reasonably be expected to be on the road, are factors to be taken into consideration in assessing the rashness or negligence of the driver. "in order to establish an offence under rash or negligent driving it is not necessary for the prosecution to prove that there was in fact any danger to ascertained members of the public; it is sufficient to show that there was potential danger having regard to the amount of traffic which might reasonably be expected to be on the road". (Vide Harris's criminal Law, 20th Edn. by Palmer, page 267) It is the duty of every man who drives a vehicle on a public high way, to drive it with such care and caution as to prevent as far as possible, any injury to any person. As observed by Natesan, J. , of the Madras high Court in In re Ambalal (AIR. 1967 Mad. 365): "while rashness is acting in the hope that no mischievous consequences will ensue though aware of the likelihood of such consequences, negligence is acting without the awareness that harmful or mischievous consequences will follow; but in circumstances which show that had the actor exercised the caution incumbent on him he would have had awareness of the consequences of his act. Negligence in this context has generally been understood as conduct which falls below the standard established for the protection of others against unreasonable risk of harm - the standard of conduct ordinarily measured by what a reasonable man of ordinary prudence would do under the circumstances. " The conduct of the accused in the present instance has to be judged in the above background. The fact is admitted that the road was unusually busy and crowded that day with people going to and returning from the athirampuzha church in connection with the festival there. The crowd was so large that special traffic arrangements had to be made to control the vehicles. The accused should, in the circumstances, have taken more than ordinary care in driving his vehicle. From the Athirampuzha road he was just entering the junction where the Kaipuzha road joins the Athirampuzha-Ettumanoor road. One other vehicle that was coming from the opposite direction was just diverted by the traffic constable at the junction towards the Kaipuzha road in obedience to the rule of one-way traffic which was just introduced there for the day. In these circumstances it was the duty of the accused to stop his vehicle at the junction and look on either side for any incoming vehicle and also to ascertain the position of the people using the road before he could dash on. The fact stands patent that the person was hit by the vehicle from behind. He was proceeding in the same direction and did never make any attempt to cross over to the other side. There was, therefore, no occasion for the accused to get perturbed or to lose balance, or control of the vehicle. The point was stressed by the learned counsel that within a few feet of the place of impact the bus stopped and from this circumstance it could be inferred that the bus was proceeding at normal speed only. Might be that the bus was proceeding at average speed; but in judging the penal consequence of the accused's act, other relevant factors like the nature and condition of the road and the movements of the people etc. , have also to be taken into account. On a careful consideration of the above circumstances I am not prepared to say that the accused had taken such an amount of care as was expected of him in the particular situation in which he was placed at the time. The courts below, therefore, have rightly held that he was rash or negligent in driving the vehicle and as such responsible for the death of Devasia. I see no reason to interfere with the sentence also. The conviction and sentence are hence confirmed and the revision petition is dismissed. Dismissed.;


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