NEGLIGENCE OF DRIVER ?

PETITIONER:
MOHAMMED AYNUDDIN @ MIYAM

Vs.

RESPONDENT:
STATE OF ANDHRA PRADESH

DATE OF JUDGMENT: 28/07/2000

BENCH:
R.P.Sethi, K.T.Thomas




JUDGMENT:


THOMAS, J.


Leave granted.

A passenger, while boarding a bus, fell down therefrom
as the vehicle moved forward. The driver of the bus was
held guilty of culpable negligence in that episode. He now
stands convicted under Section 304A of Indian Penal Code and
was sentenced to imprisonment for three months. All the
three courts, the trial court, the Sessions Court and the
High Court in revision - took the same stand. Hence this
appeal. The finding of facts cannot be disturbed now. The
only question which survives for decision is whether on such
facts a conclusion that the appellant is guilty of negligent
driving must necessarily follow. The facts which the courts
found to have been established in the case are these:

On 17.12.1993 the appellant was driving a bus of the
Andhra Pradesh Road Transport Corporation. A passenger by
name Agamma boarded the bus enroute at some point. When the
bus moved forward she fell out of the vehicle and its rear
wheel ran over her. She died of the injuries sustained in
that accident.

The conductor of the bus was examined as PW3. He did
not say how the accident happened. However, he admitted
that while the bus was in motion he heard a sound of
accident and the bus was then stopped. The only witness who
spoke about the occurrence was PW4. What that witness has
deposed in the examination-in-chief is the following:

"Agamma was boarding the bus and the bus was moved;
and she fell down beneath the bus and died on the spot; the
bus stopped at some distance. I saw the driver of the bus
at that time.

What is the culpable negligence on the part of the bus
driver in the above accident? A passenger might fall down
from a moving vehicle due to one of the following causes:
It could be accidental; it could be due to the negligence
of the passenger himself; it could be due to the negligent
taking off of the bus by the driver. However, to fasten the
liability with the driver for negligent driving in such a
situation there should be the evidence that he moved the bus
suddenly before the passenger could get into the vehicle or
that the driver moved the vehicle even before getting any
signal from the rear side.

A driver who moves the bus forward can be expected to
keep his eyes ahead and possibly on the sides also. A
driver can take the reverse motion when that driver assures
himself that the vehicle can safely be taken backward.

It is a wrong proposition that for any motor accident
negligence of the driver should be presumed. An accident of
such a nature as would prima facie show that it cannot be
accounted to anything other than the negligence of the
driver of the vehicle may create a presumption and in such a
case the driver has to explain how the accident happened
without negligence on his part. Merely because a passenger
fell down from the bus while boarding the bus no presumption
of negligence can be drawn against the driver of the bus.

The principle of res ipsa loquitor is only a rule of
evidence to determine the onus of proof in actions relating
to negligence. The said principle has application only when
the nature of the accident and the attending circumstances
would reasonably lead to the belief that in the absence of
negligence the accident would not have occurred and that the
thing which caused injury is shown to have been under the
management and control of the alleged wrong doer.

A rash act is primarily an over hasty act. It is
opposed to a deliberate act. Still a rash act can be a
deliberate act in the sense that it was done without due
care and caution. Culpable rashness lies in running the
risk of doing an act with recklessness and with indifference
as to the consequences. Criminal negligence is the failure
to exercise duty with reasonable and proper care and
precaution guarding against injury to the public generally
or to any individual in particular. It is the imperative
duty of the driver of a vehicle to adopt such reasonable and
proper care and precaution.

In the present case the possible explanation of the
driver is that he was unaware of even the possibility of the
accident which happened. It could be so. When he moved the
vehicle forward his focus normally would have been towards
what was ahead of the vehicle. He is not expected to move
the vehicle forward when passengers are in the process of
boarding the vehicle. But when he gets a signal from the
conductor that the bus can proceed he is expected to start
moving the vehicle. Here no witness has said, including the
conductor, that the driver moved the vehicle before getting
signal to move forward. The evidence in this case is too
scanty to fasten him with criminal negligence. Some further
evidence is indispensably needed to presume that the
passenger fell down due to the negligence of the driver of
the bus. Such further evidence is lacking in this case.
Therefore, the court is disabled from concluding that the
victim fell down only because of the negligent driving of
the bus. The corollary thereof is that the conviction of
the appellant of the offence is unsustainable. In the
result, we allow this appeal and set aside the conviction
and sentence and he is acquitted.

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