Venkatarama Ayyar, J. -
(1.) THIS appeal arises out of an action instituted by the respondents for compensation under the provisions of the Fatal Accidents Act, 13 of 1855. The appellant is a company engaged in the business of transporting passengers by bus between Dharapuram and Palani, among other places. On 20 -9 -1047 one of their buses MDC. 2414, while running from Dharapuram to Palani with passengers, met with an accident at a place called Puliampatti about 3 miles from Palani, as a result of which some of the passengers sustained injuries and one of them Rajaratnam died on 23 -9 -1947. Plaintiff 1 is his father, plaintiff 2 is his widow and plaintiffs 3 to 7 are his sons. They alleged in the plaint that the driver who was in charge of the bus was incompetent and inexperienced; that he was guilty of rash and negligent conduct In the driving of the bus; and that the accident was the result of his incompetence and negligence. Compensation was claimed under Section 1 of the Act for the Joss of pecuniary benefit sustained by the plaintiffs personally, and under Section 2 for the loss sustained by the estate, by reason of the death of Rajaratnam.
The defendants contested the claim. They denied the allegations that the driver was incompetent and inexperienced or that the driving was rash and negligent. They further pleaded that the accident was the result of the rear centre bolt suddenly giving way and that no negligence could be attributed to them. They also pleaded that the damages claimed were excessive. The Subordinate Judge 'of Diudigul held that there was no proof that the bus was driven at a reckless speed at the scene of accident, but that the fact of its occurring on the off -side of the road was itself evidence of negligence and that it had not been rebutted by the defendants. He also held that Joseph, the driver, was not proved to be competent. He, therefore, held that the defendants were liable for the negligence of their servant. On the question of damages, he awarded a sum of Rs. 3600 to plaintiff 1 and a sum of Rs. 25,200 to plaintiffs 2 to 7 under Section 1, Fatal Accidents Act and a sum of Rs. 6000 to plaintiffs 2 to 7 under Section 2 of the Act. Against this decree, the defendants preferred the present appeal. The points that arise for decision in this appeal are: (1) Was the accident due to the negligence of driver Joseph? (2) If so, to what damages the plaintiffs are entitled?
(2.) THE facts are as follows: On 20 -9 -1947 bus No. MDC 2414 started on its journey from Dharapuram to Palani and Ex. A -19 which is the copy of the entry in the Police Register shows that the bus left the police station at 3 p.m. with 16 passengers and with one Sherifuddin (D.W. 3) as its driver. The bus then came to the stand and picked up the other passengers and actually left Dharapuram at 3 -5 p.m. with 26 passengers. Just when it was about to start the cashier of the company put one Joseph in the place of Sherifuddin for driving the bus and asked the latter to help him as he was new to the road. Then Joseph took up the driving with Sherifuddin seated by his side. At Thumbslapatti just about 16 miles from Dharapuram, Rajaratnam, his brother P.W. 6 and one Thirumalai Goundan got into the bus. Three miles further down to wards Palani there is a place called Puliampatti and that is where the accident took place. There, the road passes over a culvert and then there is a sharp bend with a downward gradient. East of the road is a drain and that is marked off by 5 stones 2 feet high. The bus after crossing the culvert crashed against the 5th stone with so much force that the latter was uprooted and broken. It next attacked a tamarind tree which is stated to be at a distance of 20 or 25 feet from the stone and its bark was peeled off and it travelled some more distance before it finally came to vest. Some of the passengers were knocked and thrown within the bus itself and sustained injuries. Rajaratnam was thrown out of the bus into the ditch at a place 161 feet south of the tamarind tree. Vide plan filed with the plaint. The bus is stated to have stopped 5 or 6 feet away from this place.
At this time a bus belonging to the appellants which was coming from Palani was stopped and Rajaratnam and the other injured passengers were placed therein and sent to the Palant hospital. M.D.C. 2414 was then driven by D.W. 3 to the Palani bus stand. Rajaratnam was admitted in the hospital at about 5 p.m. Ex. A -1 is the first certificate issued by the doctor; and therein he reserved his opinion about the case. By 5 -45 p.m. he considered the case sufficiently serious and sent the memo Ex. A 2 to the Sub -Magistrate, Palani, for recording the dying declaration. Ex. A. 3 the dying declaration was recorded at about 7 p.m. Meantime, Sherifuddin, Joseph and the manager of the appellant company, (D.W. 4), who was then at Palani, all of them, went to the hospital and saw Rajaratnam. After they left the hospital, a statement was prepared by the Manager mentioning the circumstances under which the accident took place. That was presented to the Police at about 8 -15 p.m. (Ex. B. 2). In that statement which was signed by D. w. 3 it is stated that Joseph who had accompanied them to the Hospital had in the meantime disappeared. The condition of Rajaratnam became serious. He was sent for treatment to Madurai Hospital on 22 -9 -1947 and there he expired in the early hours of the 23rd September.
The first question for determination is whether the accident was due to any negligence on the part of the driver Joseph. The contention of the plaintiffs is firstly that the car was driven at a reckless speed, secondly that the driver was Inexperienced and incompetent and thirdly that the very fact of the accident occurring on the side of the road and the bus crashing against the stone and the tamarind tree is proof of negligence. On the question of speed, there is considerable body of oral evidence that the bus was feeing driven at high speed. P.W. 3 was a passenger in the bus and he also sustained some injuries for which he was treated. He stated that the feus was coming at & great speed and that that was so from the start. P.W. 4 was another passenger who deposes that the bus came at uniformly great speed, that It was about to collide with a cart at Dharapuram and that it was running at great speed when it dashed against the stone and the tree P.W. 5 runs a tea and coffee stall at the place of the accident. He picked up Rajaratnam after the accident, made him sit and gave him water. He deposes that the bus came at great speed. He was also examined by the Police during the Investigation. P.W. 6 is the brother of Rajaratnam who got into the bus along with him at Thumbalapatti and he deposed that the bus ran at an unusually great speed and that his brother cautioned the driver to drive slowly. P.W. 7 is the Sub -Inspector who held an enquiry after the accident and he states that the witnesses told him that the bus was driven at great speed. On the side of the defendants, there is D.W. 2 who claims to have travelled by this bus. The suggestion of the plaintiffs is that this is not true and that derives considerable support from the answers given by the witness in the course of cross -examination. He stated that the bus came at the "usual speed", D.W. 3 is Sherifuddin who was sitting by the side of Joseph during the time. He is an old employee of the appellants and he is even now in their service. He stated that the bus ran at a speed of 20 miles per hour and that at the place of accident the speed was 15 miles.
In weighing this evidence there are certain facts which have to be taken into account. The distance from Dharapuram to Palani is about 22 or 23 miles and the time fixed by the Transport authorities for covering this distance is U hours (vide Ex. B 7). There are 4 stops in this route Which, starting from Dharapuram, i.e., Dhasanaikenpatti, Velanpatti, Thoppanpatti and Thumbalapatti. The accident occurred at a place beyond Thumbalapatti, the last of the stopping places. D.W. 3 admitted in his examination in chief that the bus stopped at Thoppanpatti and at Thumbalanpatti, though in cross -examination he stated that he could not say whether that day the bus stopped at Dasanaickenpatti, Velanpatti and Thoppanpatti. P.W. 4 stated that the bus stopped at Velampatti and picked up passengers and that is corroborated by Ex. B. 4. Thus, there is clear proof that the bus stopped at least at 3 places between Dharapuram and the place of accident. Though there is some conflict of evidence as to the precise time at which the accident took place, the Statement of D.W. 3 that it took place at 5 minutes to 4 might be taken as correct. The result then is that the bus which left Dharapuram at 3 -5 p.m. came to the scene of occurrence At 3 -55 p.m. Making the necessary allowance for the 3 stoppages, it may be taken that the running time between Dharapuram and the place of accident was about 42 minutes and the distance covered was 19 miles. The speed, therefore, works out at an average of about 25 miles per hour. The argument on behalf of the appellants is that a Speed of 30 miles per hour is permitted under the licence and that, therefore, the speed of 25 miles at which the bus ran was not excessive. That, however, is not the correct approach. Whether in a particular instance the speed was excessive or cot must depend on a number of circumstances such as -the condition of the road, the nature of the locality, the time and so forth. A speed which would be reasonable on a fine concrete road would be excessive on a road which is full of ruts and in a state of repair. What might be regarded as a safe speed in an uninhabited area might become dangerous in a congested one. A speed which might be harmless during the restful hours of the night might be reckless during the business hours of the day. Whether in a given case the speed was excessive or not must be determined on a consideration of all the circumstances.
In - - 'Laurie v. Raglan Building Co.',, (1942) 1 KB 152 (A), a lerry which was driven at a speed of 10 to 12 'miles skidded and killed a person standing on the pavement. At that time the road was in a dangerous condition due to heavy snow fall. The question was whether the driver was negligent in driving the lorry at that speed which under normal conditions would have been quite reasonable. In holding that the speed was unreasonable under the circumstances. Lord Greene M.B. observed:
"I am quite unable to accept the proposition that, when a road is in that condition, a lorry of this kind, loaded in the way in which it was loaded, is entitled to proceed at such a speed. If roads are in such a condition that a motor car cannot safely proceed at all, it is the duty of the driver of the motor car to stop. If the roads are in such a condition that it is not safe to go at more than a foot pace, his duty is to proceed at a foot's pace. The evidence here shows clearly that the road was in such a condition that a prudent driver, even if he did not find it necessary to stop, would have proceeded at a very much slower speed. I therefore, think that, not only did the fact that part of the lorry swept across the pavement raise a 'prima facie' case to be answered, but also that the evidence was sufficient to call for an answer even if there had been no such 'prima facie' case of negligence."
(3.) THE question for determination, therefore, is whether the speed at which the bus ran at the place was reasonable having regard to the condition of the locality. The material facts to be noted are that the road passes over a culvert, that it takes a sharp baud with a downward gradient, that adjoining it is a ditch, that with a view to prevent vehicles from running into it 5 stones 2 feet high are planted and that the road proper has a space of lands on either side and at their extremity there are trees standing. At such a place prudence requires that a bus must be driven with great caution and with much less speed than on a straight road. Was that done? Mr. T.V. Muthukrishna Ayyar, the learned advocate for the appellants argued that it was and he referred to the statements made by P.W. 6 in the course of cross -examination. He deposed that Rajaratnam and himself boarded the bus at 3 -30 p.m. at Thumbalapatti, that the bus stopped only for one minute and that the dashing of the bus against the tree was at 3 -45 pm. The distance between Thumbalapatti and the place of accident being 3 miles; it is argued that the bus ran at a speed Of less than 15 miles an hour and that, therefore, the accident could not have resulted from the speed. That, however, is to assume that the time given by the witness is accurate. D.W. 3, on the other hand, deposed that Thumbalapatti was reached at 3 -45 p.m. and the accident occurred 5 minutes to 4. Making allowance for the stoppage time at Thumb'alapatti this works out at 20 miles per hour and this speed must be considered excessive having regard to the stature of the ground.;