DISTRICT BOARD Vs. SRI NAWAS

JUDGEMENT

(1.) This is an appeal and a cross-objection against a judgment and decree, dated 20 April 1936, of the Subordinate Judge of Budaun, in a suit for recovery of money as damages. The plaintiff, Sri Nawas, is the owner of certain buses which ply for hire in the district of Budaun. The defendant the District Board, Budaun, is a statutory body in which the public highways in the district of Budaun are vested and which manages them. On 26 November 1984, one of the buses of the plaintiff left Budaun station for Asafpur. As it reached the spot between miles Nos. 20 and 21 close to the village Kamalpur, it met with an accident and was burnt. The bus had a capacity of 29 seats. It was driven by a driver named Azhar Husain. At the place where the accident occurred, the road is partly metalled and partly kachcha. The central portion of the road which is about 12 feet wide is metalled. On both sides of the metalled road, there are patris and these patris vary in width at various places. On the spot where the accident occurred the width of the kachcha patri on the northern side was five feet and on the southern side was about nine feet. The accident occurred at about 9 P. M. on a dark and foggy night. At the time of the accident, there was good deal of dust on the road partly coming from the village abadi and partly thrown up by another bus which had preceded this bus. At the time of the accident among the passengers in the bus there were two constables, Yaqub Ahmad Khan and Jafar Nazar.

(2.) Soon after the accident the constable Yaqub Ahmad Khan lodged a report in the police station of Bisauli and as a result a case for rash driving was started against the driver Azhar Husain which resulted in his conviction and a fine of Rs. 100. In the accident a number of persons had received injuries, but the injuries were not serious. After serving a statutory notice, the plaintiff, Sri Nawas, on 26th July 1935, raised an action in the Court of the Subordinate Judge of Budaun against the District Board of Budaun for recovery of a sum of Rs. 5010 as damages for the loss of bus caused by the negligence of the defendant. The plaintiff's case shortly stated was that he had purchased the bus in 1930 for a sum of about Rs. 7000, that the bus had made a journey of about 30,000 miles when it met with the accident and was burnt and that the cause of the accident was the bad condition of the road which the District Board was under obligation to keep in good repair. The plaintiff, therefore, alleged that as the District Board did not keep the road in good repair which was the cause of the accident they were liable to pay him the damages claimed. The cause of the accident according to the plaintiff was that between miles 20 and 21 while the bus was running at a speed of 20 to 21 miles per hour it found that from the opposite side certain bullock-carts were coming in the middle of the road and in order to save an accident the driver of the bus swerved towards the left. At the place where the bus swerved towards the left the road had sloped towards a pond which was close-by, and as between the pond and the kachcha patri of the road on account of the action of the rain the road had received a depression, the bus in swerving was caught up in the depression and finally fell into the pond and got upset and, later on, by the action of the engine got burnt.

(3.) The defendant denied that the road at the place where the accident occurred was in a bad condition. The defendant further denied that any bullock-carts were coming from the opposite direction which necessitated the swerving of the bus towards the left. The defendant pleaded that the driver Azbar Husain was trying to outstrip the other bus which was going ahead and in doing so it had to swerve to the left and met with an accident on account of rash and negligent driving. The trial Court found that on the spot where the accident occurred the road was in bad repairs. It further found that though there might be some truth in the allegation that the driver was trying to outstrip the other bus, yet the main reason of swerving the bus on the left was that bullock-carts were coming from the opposite side. The trial Court further found that the road being in bad repair it was obligatory on the District Board to keep it in proper condition and not having done so they were liable to pay damages to the plaintiff. These damages were assessed by the trial Court at a sum of Rs. 3847 for which a decree was granted in favour of the plaintiff. Against this decree the defendant has preferred this appeal and the plaintiff has filed cross-objection.