M SSRIKANTAIAH Vs. MHANUMANTHA RAO

JUDGEMENT

(1.) The appellant filed a suit for damages against 1st respondent, who is the owner of a bus, and respondent 2, who is its driver, on the ground of injuries caused to his left-arm and left finger while he was travelling in their bus, and it is said the bus swerved and passed close to the side of a tree causing the aforesaid injuries to the plaintiff. The evidence of the plaintiff and his brother-in-law P.W. 4, discloses that the bus took a turn from the road in trying to pass two bullock carte which were going in front and that the accident occurred at that time. The evidence of the disinterested witness, D.W. 1, who was sitting in the front seat of the bus by the side of the driver, discloses that one of the bullock carts turned across the road leaving no space for the bus to move, with the result that the driver took a turn to a side, and finding a tree in front, he turned to the left. When he was thus taking the bus back to the road, after avoiding the cart one of the sides of the bus came so close to the tree that it was damaged and the arm of the plaintiff was injured as stated above. The learned Munsiff who gave a decree for plaintiff also thinks that it is probable that one of the bullock carts turned across the road and in consequence the bus had to take a turn to avoid a collision. But he thinks that since the driver had begun to detour at a distance of forty feet from the place of accident, he had enough time to apply the brake and stop the bus. As pointed out by the learned Additional District Judge, the evidence does not show that the bullock cart stood across the road when the driver began to detour the bus. If he did begin to detour the bus at a distance of 40 feet from the place of accident, it must be remembered, he did so to pass by the side of the bullock-carts. The disinterested testimony of D.W. 1 shows that one of the carts took a turn when the bus was almost close by and it is also clear that but for the driver taking a turn to the right, a serious accident to the drivers of the bullock-carts and to the bullocks as well as the passengers in the bus might have happened. The learned Munsiff's conclusion is that the bus was being driven at such a high speed that it was impossible for the driver to have stopped it though he saw the carts at a good distance. This is nobody's case, as the plaintiff does not allege even in the plaint that the bus was being driven at a high speed.

(2.) The learned Munsiff appears to be under an impression that the burden of proof shifts on the owner and driver of the bus in a case of this kind when the injured person proves that he has been injured in a bus accident. It is, no doubt, true, that it was observed by their Lordships of the Privy Council in -- 'Winnipeg Electric Co. v. Jacob Geel', AIR 1932 PC 246 (A) as follows :

(3.) As observed by Costello J. in -- 'Baijnath v. Corporation of Calcutta', AIR 1933 Cal 178 (B) :