PARMESHWARI DAS Vs. SOMAN DEVI

JUDGEMENT

(1.) The facts giving rise to this second appeal from order may be state as under. Shrimati Soman Devi, the plaintiff-respondent, had filed a suit for the recovery of Rs. 5,000/-, as damages on account of the death of her husband Om Prakash. The deceased was travelling in a motor vehicle belonging to defendants Nos. 1 to 3 and it was driven by defendant No. 4 Mast Ram as the driver. It could not negotiate a curve and fell into a khad. The motor vehicle in question No. PNF 847 is 1943 model of Chevrolet station wagon and was registered as a private carrier and belonged to Sohan Lal and his two sons Parmeshwari Das and Om Prakash defendants. On 29th of November, 1953,according to the plaintiff's case, this vehicle was proceeding from Banjar to Aut in Kulu hills. It carried thirteen passengers and an equal number of bags of potatoes weighing approximately twenty-six maunds. The accident took place after the motor vehicle had traversed a distance of about seven miles from Banjar. On a curve the steering wheel became free and the vehicle fell into the khad seventy feet below. The plaintiff's husband Om Prakash who was one of the passengers and Ishru a cleaner died instantaneously. Saling Ram, another passenger, died some later and other passengers were injured. On 6th of November, 1954, the plaintiff brought a suit for the recovery of Rs. 5,000/-. On the pleadings of the parties, the following issues were framed:-

(2.) The trail Court found that the Court had jurisdiction, that the plaintiff was the widow of Om Prakash deceased, and that the vehicle in question was jointly owned by defendants Nos. 1 to 3. On issue No. 4, which is the material issue now, the defendants were absolved from any Act of negligence and the suit was accordingly dismissed, leaving the parties to bear their own cots.

(3.) The plaintiff preferred an appeal. The Additional District Judge disagreed with the conclusion of the trial Court on issue No. 4 and found that the accident was due to the negligence of the defendants. He accepted the appeal, set aside the judgment and decree of the lower Court and remanded the case to the trial Court for final decision after giving a finding on issue No. 5.