NIYOGI,J - (1.) THE applicant, Sekh Juman, is a licensed motor driver. On 10th April 1943 at about 4-45 p.m. he was driving a heavy six-wheel truck of about one and a half ton capacity, along the Anjani Jail Road, Nagpur. At that time another motor truck was standing on that road at the place where the road leading from Ramdas Peth intersects the Anjani Jail Road. That truck was standing slightly to the left of the middle of the road to take in some workmen. It was facing the direction of the Sonegaon Aerodrome from which the applicant started with his own vehicle. The workmen were crossing the road to get at the truck waiting for them. Four or five of them reached the truck but one of them, a man aged 55, who had very nearly crossed the road sighted the applicant's truck and got confused. In his confusion he tried to recross the road when he was knocked down by the applicant's truck. He sustained severe injuries which resulted in his death two days later at the Mayo Hospital.
(2.) THE applicant was tried on the charge of the offence of causing the death by negligence punishable under Section 304A, Penal Code. In the trial Court he was found guilty and sentenced to undergo rigorous imprisonment for 12 months and also to pay a fine of Rs. 50. The Sessions Judge on appeal upheld the conviction but reduced the period of imprisonment to six months and set aside the sentence of fine. The Courts below agreed in finding that one of the brakes of the applicant's truck was not in order and that the truck was being driven at such a speed that it could not be controlled at the critical moment, so as to avert the collision. Attempt is made, on behalf of the applicant, to show from the evidence that the findings of the Courts below were erroneous. I would certainly entertain the plea had there been no evidence whatever to afford any basis for the findings, but that is not the case. The learned Counsel is virtually seeking to impugn the correctness of the inferences drawn from the evidence which undoubtedly exists whatever weight might be attached to it. In such a case it is imperative on this Court in revision to follow the rule laid down by Lord Sumner in Hontestroom v. Sagaporack (1927) A.C. 37 as follows: The higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. These observations were quoted with approval in Joseph Eva Ltd. v. Reeves (1938) 2 All. E.R. 115. This Court, exercising its revisional jurisdiction, ordinarily follows the above rule and does not take upon itself the task of weighing the evidence afresh. All that this Court can do in revision is to see whether the trial was regularly conducted and whether the law has been properly understood and applied to the facts that are proved or admitted. The findings of fact are that one of the brakes of the applicant's truck was not functioning properly and that the rate of speed was such as to make it impossible for the driver to stop the car in the moment of exigency. It is pertinent to bear in mind that the applicant also admitted in the trial Court that "the car was not in a proper working order" and that there was a danger in driving a bad car without a proper braking apparatus at a speed of 20 miles an hour and lastly that there was "much traffic" on the road. Now, it is clear that a heavy motor truck was already standing on the road waiting to pick up the workmen crossing the road, that it was standing on the road at or near the intersection of the Ramdas Peth Road with the Anjani Jail Road along which the applicant was driving, that the braking apparatus of the applicant's car was not in order and that the vehicle was going at a speed which was beyond the capacity of the brakes to control it to bring the car to rest, at the critical point on a main road which was not free from traffic. On the finding of the learned Sessions Judge the applicant's truck skidded over a distance of about 30 to 45 feet after it knocked down the old workman.
(3.) IT is said that there could be no negligence when the applicant tried his best to stop the car as soon as the man was seen reverting to the side from which he had crossed the road. Whether there was negligence or not would depend upon the circumstances in which the vehicle and the pedestrian were placed in relation to each other. Whether the man was crossing or recrossing the road, it must be conceded that he was on the road and was perplexed and disconcerted by the sight of the applicant's vehicle coming in high speed. On the estimate of the trial Magistrate, it was at a distance of few cubits and this means that the vehicle was being driven fast to within a few cubits of the man on the road without care being taken to keep it under thorough control. Negligence does not mean absolute carelessness or indifference but want of such a degree of care as is required in particular circumstances. A negligent state of mind is consistent with an intention to exercise at any rate some care as where a motorist, in a hurry, drives quickly down a crowded street and collides with a pedestrian; here, he does not intend to have collision and exercises as much care he can, consistently with his desire to drive quickly. His negligence consists in his carelessness or indifference in exposing pedestrians to the risk of collision because he is not prepared to subordinate his desire for speed to his desire to drive carefully: see p. 1, the Law of Negligence by Charlesworth. The negligence in the present case consisted in not slowing down the vehicle as soon as the applicant (assuming that he kept a proper look out and was conscious of the defective brake in his vehicle) viewed a number of workmen crossing the road to board the lorry standing in almost the middle of the road. It is his failure to regulate the speed of his vehicle while it was at a distance long enough to enable him to control it absolutely when it would approach the place where the workmen were crossing, that constituted negligence. If he had exercised the needed care and diligence at the right moment, he would have avoided the risk of the collision. But his desire for speed got the better of his consideration for the safety of the persons on the road. Negligence is the failure to take reasonable care and the degree of the reasonable care is not to be measured by any abstract standard. The duty to be established against an alleged wrong-doer is a duty to him who makes the allegation: see Joseph Eva Ltd. v. Reeves (1938) 2 All. E.R. 115. Although this being a criminal case, it was for the prosecution to prove the necessary facts and circumstances to substantiate the charge of negligence, the case is, indeed, one to which the maxim of res ipse loquitur should apply. As will be shown in the sequel the applicant was under a duty to exercise care and the circumstances in which the accident happened were such that with the exercise of requisite care no risk would have ensued. ;