BHURMAL AND MITRA MOTOR ASSOCIATION Vs. RAGHUNATH BANSILAL KASAT
LAWS(BOM)-1962-8-33
HIGH COURT OF BOMBAY (FROM: NAGPUR)
Decided on August 06,1962

BHURMAL AND MITRA MOTOR ASSOCIATION Appellant
VERSUS
RAGHUNATH BANSILAL KASAT Respondents


Referred Judgements :-

CHRISTIE V. GRIGGS [REFERRED TO]
COTTON V. WOOD [REFERRED TO]
READ-HEAD V. MIDLAND RAILWAY CO. [REFERRED TO]
BARKWAY V. SOUTH WALES TRANSPORT CO. [REFERRED TO]
MORTON V. WILLIAM DIXTON LTD. [REFERRED TO]
SCOTT V. LONDON AND ST. KATHERINE DOCKS CO. [REFERRED TO]


JUDGEMENT

- (1.)THE first question is about the nature and amount of care expected from the defendants. This being an action in negligence the plaintiff must establish that the defendant owed him a duly, breach of it and a causal connection between the injury and the breach of duty. In Read-head v. Midland Railway Co. (1869) 4 QB 379 the injury resulted from the breaking of the tyre of one of the wheels, owing to a latent defect in the manufacture of the tyre. On the question of the respective liabilities of carrier of goods and carriers of passengers the learned Judge Montague-Smith, J. cited with approval a passage from Christie V. Griggs, (1809) 2 Camp 79 to the following effect:
"there is a difference between a contract to carry goods and a contract to carry passengers. For the goods the carrier was liable at all events, but he did not warrant the safety o1 the passengers. His undertaking as to them went no further than this, that as far as human care and foresight could go he would provide for their safe conveyance. "
He then says: "an obligation to use all due and proper care is founded on reasons obvious to all, but to impose on the carrier the burden of a Warranty that everything he necessarily uses is absolutely free from defects likely to cause peril, when, from the nature of things, defects must exist which no skill can detect, and the effects of which no care of foresight can avert, would be to compel a man, by implication of law and not by his own will, to promise the performance of an impossible thing, and would be directly opposed to the maxims of law. . . . . . . . . . " and then at page 76 he says: " 'due care' however undoubtedly means, having reference to the nature of the contract to carry, a high degree of care, and casts on carriers the duty of exercising ail vigilance to see that whatever is required for the safe conveyance of their passengers is in fit and proper order". Having found that the accident occurred because latent defact in the machinery could not have been discovered by any amount of human skill or care, non-suited the plaintiff. The same principles were reaffirmed in Barkway v. South Wales Transport Co. (1950) 1 All ER 392 Lord Porter answering an argument on behalf of the Company that the accident of the nature and burst of a tyre owing to an impact fracture was a rare event -- one of the witnesses saying that it was negligible and that the public must take their chance of accident occurring said "the duty, as I see it, of a Transport company is to take all reasonable precautions for the safety of their passengers and not to leave them in danger of a risk against which some precautions, at any rate can be taken"-lord Norman defined the duty of the carriers thus:
"the respondents are not insurers, but they have a duty both at common law and by their contract, with them who travel in their omnibuses to take reasonable care that the omnibus including the tyres is in good order and In a safe condition to carry a fall load of passengers on the intended journey. Here again the onus is on the respondents since they alone are in possession of the relevant facts. . . "
He then in reference to the evidence on behalf of the respondents says (402)
"evidence that the respondents practice does not fall short of the precautions taken by other owners goes only part of the way to meet the case of negligence against them. It is not a complete answer to the charge that they have omitted precautions which were obviously called for"
. He cited with approval the following passage from the opinion of Lord Dunedin (Lord President) in Morton v. William Dixton Ltd. , (1909) SC 807 at p. 309 in a case between employer and employee:
"where negligence of the employer consists of what I may call a fault of omissions I think it is absolutely necessary that the proof of that fault of omission should be one of two Kinds -- either to show that the thing which he did not do was a thing which was commonly done by other persons in like circumstances or to show that it was a thing which was so obviously wanted that it would be folly in any one to neglect to provide it"
. and said that the principle is of general applicable.
(2.)IT is argued that the learned Judge was wrong in applying the principles of res ipsa loquitur to the fact of the case. The contention is not justified. Though the learned Judge referred to the maxim in his judgment ha considered the evidence and held that the accident took place because of the negligence of the defendants. The principle underlying the maxim is a rule of evidence and may be stated to be: "when the thing is shown to be under the management of the defendant or his servants and the accident is such as in 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", (per Earl C. J. : Scott v. London and St. Katherine DOCKS Co. , (1865) 3 H and C 596 at p. 601.)In the present case the plaintiff does not rely so much on the maxim. He has led positive evidence about the circumstances in which the accident occurred and the extensive damage to the bus and the manner in which Its different parts were scattered about at long distances only support his evidence. There is no doubt this is part of the evidence and can be legitimately used in support of the other evidence. * * * * *
(3.)IT appears to us that even apart from the opinion of these experts for the one side or the other, the damage to the vehicle, the way in which its different parts were found lying at different places and the damage to the several parts of the bus itself, read with other evidence is more than sufficient to lead us to the inference that the vehicle was driven at a speed at which it should not have been driven and, therefore, it got out of control and met with the accident. In this view of the evidence it is obvious that the case does not fall within the principle of the case Cotton v. Wood, (1860) 141 ER 1288 where Earl C. J. Eaid:
"when it is a perfectly even balance upon the evidence wbefher the injury complained of has resulted from want of proper care on the "one side or on the other, the party who founds its claim upon the imputation of negligence fails to establish its case. "



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