GWALIOR & NORTHERN INDIA TRANSPORT CO. LTD. AND ANOTHER Vs. DINKAR DURGA SHANKAR JOSHI AND ANOTHER
HIGH COURT OF MADHYA PRADESH
Gwalior And Northern India Transport Co. Ltd. And Another
Dinkar Durga Shankar Joshi And Another
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Dixit, J. -
(1.) THIS appeal is from a judgment of the District Judge, Indore, by which he found the appellants and the respondent Brij Gopai liable for negligence in causing injuries to the plaintiff -respondent Dinkar Joshi, and awarded to the plaintiff Rs. 37.500/ - as damages besides costs and interest.
(2.) THE case of the plaintiff Dinkar Joshi was that appellant Gwalior and Northern India Transport Company Ltd., was a transport company and was at the material time running an omnibus service from Mhow to Indore. On the morning of 12 -7 -1946 at about 11 -30 A. M. an omnibus belonging to the company left Mhow for Indore with lull load of passengers, twenty -six in number, of whom the plaintiff was one.
It was driven by the respondent Brij Gopal. After it had travelled about two miles, the bus stopped running due to some engine trouble. It was, however, set right in about twenty minutes and put in motion again. It then proceeded and covered a distance of two miles and again came to a stop on account of further engine trouble. This was also put right and it restarted after being pushed.
After it had thus travelled about twelve miles from Mhow and when it came on to a bridge across the Garbari river, the bus swerved to the right, tore down some iron railings of the bridge, fell over the bridge and rested on the bed of a river eighteen to twenty feet below. In consequence of this accident the plaintiff was seriously injured.
The plaintiff stated that his clevical and first lumbar vertebra were fractured; that he had a lump over his shoulder and was disabled; that on account of these injuries he suffered extreme pain and inconvenience for over six months and that during all this period he could not stand sit, sleep or take his food properly, and that his endurance for work had been lowered, his earning capacity diminished and the expectation of life shortened.
As to the circumstances in which the accident occurred the plaintiff's allegation in para 3 of the plaint is:
At a place about three miles distant from Indore there is a bridge which crosses the Garbari river. At some distance before the bridge is reached, there is a wooden sign -post which, bears upon it the words "Speed not to exceed 10 miles per hour" and on the parapet wall of the bridge itself there is a stone slab affixed which states "Speed 5 miles per hour".
The bridge is curved. Notwithstanding the warnings, the driver proceeded over the bridge at a speed of about 25 to 30 miles per hour. After having proceeded a certain distance on the bridge, the bus swerved to the right, crashed through the iron railings of the bridge and fell down into the bed of the river about 18 to 20 feet below.
He also averred in para 8 of the plaint that:
The plaintiff submits that the injuries sustained by him were due to the negligence of the defendants. The 1st defendant failed to provide safe, strong, sufficient and roadworthy vehicle suitable for safe transportation of passengers from Mhow to Indore; the said 1st defendant also failed to subject the said vehicle to periodical examination and to ascertain defects from time to time and to remove them; the said 1st defendant also failed to provide careful, cautious and skilled driver with ability, experience and forethought who was well -acquainted with the road he undertook to drive.
The driver did not drive the bus with care, caution and skill and did not use ability, experience and forethought in driving or otherwise managing the bus. The driver was also guilty of negligence in disobeying traffic regulations and failing to slow down at the approach of the bridge as required by the sign -post and the stone tablet referred to above.
The plaintiff says that the driver drove the bus rashly, recklessly and negligently at a fast and furious speed at the bend of the bridge and on the bridge itself without maintaining a proper lookout. The driver also acted negligently, in failing to observe all the rules and regulations of the Indore Motor Vehicles Act (No. III of 1940) together with its schedules and in failing to pull up in time and in failing to take a proper turn when the bus was in heavy speed.
The driver was also negligent in failing to apply the brakes and bring the bus to a standstill, when it began to swerve to the right and go out of control.
On these allegations the plaintiff claimed damages against the Gwalior Northern India Transport Company Ltd., and Brij Gopal. He also made the Gwalior and Central India Transport Company, a state concern of the former Gwalior State, a party to the suit and claimed damages from the concern alleging that according to a letter dated 10 -2 -1847 addressed by the G. C. I. T. to him the G. C. I. T. claimed to be the owner of the bus in question, and that there was some doubt as to whether the Gwalior Northern India Company Ltd., or the Gwalior and Central India Transport Services were the owners of the bus at the time of the accident. The plaintiff claimed under various heads a total amount of Rs. 95,500/ - as damages.
(3.) THE Gwalior Northern India Transport Company Ltd., did not file any written statement and the case proceeded ex parte against the company. The Gwalior and Central India Transport Services and Brij Gopal contested the suit on identical grounds. They admitted the accident, as also the fast that the plaintiff received some injuries in the accident.
They, however, denied that the plaintiff's injuries were serious, and put the plaintiff to strict proof of the injuries alleged to have been received by him. They denied that the accident, was caused on account of their negligence or want of care and sought to explain the accident by the following pleading:
The said bus was properly maintained and looked after and was in an absolutely road -worthy condition at all material times. The third defendant drove the said bus at all times on the proper side of the road and with due care, caution and control and with a proper and adequate lookout and with a proper and adequate consideration for the configuration and layout of the road.
The third defendant drove at a cautious, proper and moderate speed which was duly lowered in conformity with road regulations and as required from time to time by the conditions of the road. When he approached the said bridge, the third defendant, who was not going fast at any time, reduced the speed still further.
As the said bus was being driven over the bridge there was a sudden and totally unexpected breakage in the steering gear with the result that the bus immediately swerved to the right and crashed over the railings or parapet wall of the said bridge. The third defendant, in the circumstances, could do nothing at all to prevent the said accident. This defendant submits that in the circumstances this was a purely inevitable accident for which nobody could be responsible or to blame.;
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