GOBALD MOTOR SERVICE LTD., A COMPANY REGISTERED UNDER THE INDIAN COMPANIES ACT, BY ITS MANAGING DIRECTORS N. VEERASWAMI CHETTIAR AND ANR. Vs. R.M.K. VELUSAMI AND ORS.

JUDGEMENT

(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.

(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.

(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.