M GANESAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The petitioner in this case has been convicted by the Chief Presidency Magistrate of offences under Section 338, Penal Code, and Section 116, Motor Vehicles Act, and sentenced to three months rigorous imprisonment for the offence under Section 338, Penal Code, and one month rigorous imprisonment under Section 116, Motor Vehicles Act, the sentences to run concurrently.

(2.) The case relates to an accident which happened at about 11 A.M. on 22nd October 1947 and the facts are these. On the day of occurrence, a tram car proceeding towards Mylapore stopped at the tram stop opposite the Willington cinema. A bus, M. S. C. No. 8751, was also going towards Mylapore. The petitioner was the driver of that bus. A head constable who was traveling in the tram was trying to get down through the front left passage of the tram. As he was attempting to alight keeping his legs on the foot board, the rear right side body of the accused's bus dashed against the foot board of the tram and as a result, the constable was injured in the leg. He was taken to the hospital and it was found that four bones in the left leg had been fractured. Tea days later he died on account of pneumonia and weak heart. According to the medical evidence, the injuries would not have been fatal but for the other two complications that the constable had. The injuries were therefore grievous in nature. The accident, as stated already, happened while the tram was stationary at the Willington stop. It is in evidence that paint from the rear right side of the body of the bus was scraped to an extent of about one foot long and four inches broad and some paint from the bus was also found sticking to the left front side of the tram. At the time of the accident some hand carts laden with charcoal were going on the left side of the road in the same direction as the tram and the bus. The evidence is not quite clear at what distance from the tram these hand carts were going. But there is evidence that there was a line of cars parked on the left side of the road. On the evidence and according to the admission of the accused, the Chief Presidency Magistrate finds that " 'there was only just enough space for his bus to pass' and that 'he should not have taken the risk of elbowing his way along the interspace.' He did so at his risk, and if such a course should result in an accident, which really happened, he must answer for it."

(3.) In cases of accidents as pointed out by Mukerji J. in Smith v. Emperor, 53 Cal. 333 : (A. I. R. (13) 1926 Cal. 300 : 27 Cr. L. J. 153):