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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

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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.