A.P. SEN J.

(1.) This appeal under section 110-D of the Motor Vehicles Act, 1939, filed by the claimant, is directed against a decision of the Claims Tribunal of Bhopal, dated 25th August 1964, dismissing his claim for compensation for the bodily injury suffered by him in a road accident.

(2.) The relevant facts, briefly stated, are these. On 15th February 1962, at 11.30 A. M., the claimant who is a Sub-Inspector of Police, boarded a bus owned by the Madhya Pradesh State Road Transport Corporation which is a State Road undertaking, at Piparia on his way to Sohagpur for giving evidence in a criminal case. The bus was being driven by one Jagdishprasad, an employee of the Corporation. On the way, the bus met with an accident, near- about the village of Karanpur, at about 12.30 P.M. The bus suddenly swerved to the right, jumped over a nullah and crashed into a roadside tree. As a result of the accident, the claimant received severe injuries, and alleging that it was due to negligence of the driver in driving the bus at an excessive speed, claimed Rs. 40,996 as compensation for the injuries suffered by him. The Madhya Pradesh State Road Transport Corporation, however, denied the claim, alleging that the accident was not on account of any negligence of its driver in driving the vehicle at an excessive speed but it was caused due to a mechanical failure of the vehicle which, according to it, was an unforeseen event and, therefore, an act of God for which no liability could be saddled upon it. The Corporation was insured with the Indian Insurance Company Association Pool, Bombay, but the insurers entered no defence.

(3.) The Claims Tribunal has negatived the claim, holding that the accident was due to a latent defect which was not discovered by reasonable care and that, in consequence, there was no negligence on the part of the Corporation or its driver. It observed :

"Assuming that the bus was driven at a fast speed, the question would still arise whether the driver was rash or negligent. The fact that a vehicle is being driven at a fast speed is no ground for holding that the driver was rash or negligent. Negligence may be said to consist in a failure to exercise due care in a case in which a duty to take care exists. If the possibility of danger emerging is reasonably apparent, then to take no precaution is negligence, but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of reasonable man, then there is no negligence. In para. 1(a) of the petition it was suggested that the bus was being driven on the wrong side of the road, but not a mention of it was made in the deposition either by Ramdulare or by Mansaram. As such, it is legitimate to infer that the bus was driven on right side of the road, and as the road was free, the driver would not be said to be rash or negligent if he drives the bus at a fast speed. Further, the applicant has not given any explanation as to why the bus suddenly left the road and dashed against the tree. The manner and the circumstances under which the entire accident happened suggest that something must have happened which made the bus to leave the road and dash against a tree on the right side. The driver has given an explanation by saying that the shackle-pin had fallen down as a result of which the bus went out of his control. This explanation appears to me to be reasonable and I am, therefore, inclined to believe that the accident occurred on account of some mechanical failure and not on account of rashness or negligence on the part of the driver who could not be so rash as to endanger his own life."

In our view, the Claims Tribunal rightly placed the burden of proving negligence on the claimant without the proof of which, neither the Corporation nor its insurers were liable. (4.) The Corporation had specifically pleaded that the proximate cause of the accident was due to slipping of the shackle-pin of the right front wheel as a result of which the vehicle went out of its alignment and that is the reason why the vehicle suddenly went out of control and dashed on to the tree. It led the evidence of its driver, D. W. 1 Jagdishprasad, who deposed that the vehicle was an old one fitted with a governor and it could not gather speed beyond 25 miles an hour, and that he was driving the bus at that speed although the claimant who had to attend the Sohagpur Court was urging him to drive it faster. He further states that suddenly the vehicle went out of his control, swerved to the right side and crashed into a tree resulting in the accident. That the accident was due to slipping of the shackle-pin can hardly be denied. We have on record the testimony of the photographer, A. W. 2 Bhagwatsingh, who visited the place immediately after the accident and found the shackle-pin near the spot. He is a completely disinterested person and his evidence lends assurance to the verson of the driver as to the cause of the accident. The photographs taken by this witness, which are on record, Exs. A.-7 and A.-8 showing the position in which the vehicle was placed after the accident, suggest that there was a sudden mechanical failure. Even if we were not to attach any credence to the testimony of the driver, according to the claimant A. W. 1 Ramdulare himself, the vehicle was at the time of accident being driven at a speed of 45 /50 miles per hour. That can hardly be treated as an excessive speed in case of vehicle of this type, having regard to the circumstance that it was being driven on a clear road free of all traffic.

(5.) As against this, we have the self-serving statement of the claimant, A. W. 1 Ramdulare, and his fellow passenger A. W. 6 Mansaram, that the bus was being driven at a ferocious speed despite the fact that all the passengers went on remonstrating with the driver not to drive so fast. It is incredible that when the claimant, who is a Sub-Inspector of Police fully attired in his uniform and was sitting just behind the driver, warned him to slowdown, the driver would not heed to his warnings. The allegation that the driver was recklessly speeding up the vehicle is unworthy of belief and we have no hesitation in affirming the finding of the Claims Tribunal that excessive speed was not the true cause of the accident. For reasons best known to him, the claimant has placed on record no expert evidence in rebuttal of the Corporations case that slipping of the shackle-pin was the proximate cause.

(6.) Being faced with this, the learned counsel for the appellant endeavours to rely on the inspection reports of Padmanathan James, Motor-Mechanic and S. K. Bindal, Regional Transport Inspector (Technical), Bhopal, both of whom had inspected the vehicle after the accident, and on the testimony of P. W. 11. Padmanathan James in Criminal Case No. 39 of 1963. So far as the Inspections reports are concerned, the documents not having been proved in the manner required, are inadmissible in evidence. The testimony of P. W. 11 Padmanathan James in the criminal case cannot also be read as evidence and is equally irrelevant so far as the present proceedings are concerned. Section 33 of the Evidence Act, on which reliance is placed, is not applicable by reason of the first proviso thereto. In accordance therewith, section 33 is not attracted unless there is an identity of parties. [ Krishnavva v. Venkata Kumara, AIR 1933 PC 202 [LQ/PC/1933/60] and Ganpatrao Yadorao v. Nagorao Vinayakrao, 1940 NLJ 437=AIR 1940 Nag 382]. Admittedly, the Corporation was not a party to the criminal prosecution launched by the State against the driver and, therefore, these documents cannot be read as evidence in these proceedings for establishing that the true cause of the accident was the excessive speed of the vehicle or that the shackle-pin was dislodged due to the violence of the impact on the tree which had the effect of shattering the bolts in the locking device fastening it. The withholding of such material evidence clearly justifies us to draw an adverse inference against the claimant that his allegation that the accident to the bus was due to its excessive speed was apparently not true. For all these reasons, we would accordingly hold agreeing with the Tribunal that the contributory cause of the accident was a latent defect in the vehicle brought about by the slipping of the shackle-pin of the right front wheel and not any negligence on the part of the driver in driving the bus at an uncontrollable speed.

(7.) The learned counsel for the claimant mainly relies on the doctrine of res ipsa loquitur for his submission that the leaving of the high- way by the bus and its crashing into a road-side tree were prima facie proof of negligence. The res ipsa loquitur is not a rule of law. As observed in Charlesworth on Negligence, 3rd Ed., p. 42-

"It is no more than a rule of evidence affecting onus. It is based on common sense and its purpose is to enable justice to be done when the facts bearing on a causation and on the care exercised by the defendant are at outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant."

(8.) If the facts are sufficiently known, the question ceases to be whether the facts speak for themselves, and the only question is whether on the facts as established, negligence is to be inferred or not. The doctrine of res ipsa loquitur does not, therefore, apply when the cause of the accident is known. In Barkway v. South Wales Transport Co. Ltd., (1950) 1 AllER 392 (HL), Lord Porter stated :

"There was a loud explosion and the omnibus veered across the road to the offside footpath, tore down some iron railings, fell over an embankment, and lay on its offside in contact with a truck or trucks standing on the railway line below the road. Shortly after the explosion the burst tyre became deflated. Before it had done so, the omnibus proceeded for some eighty-two feet and then, as a result of the rim cutting through the deflated tyre, caused marks on the road which continued for eighty-six feet, two inches. At that point it mounted the pavement and continued to travel on the edge of the embankment for a further eighty-two feet. In these circumstances the appellant claims that the doctrine of res ipsa loquitur applies. Omnibuses, it is said, which are properly serviced, do not burst their tyres without cause, nor do they leave the road along which they are being driven. If the evidence stopped there, the statement is unexceptional. As was said by Erle C. J., in Scott v. London Dock Co., (1) 3 H and C 601: ----Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care. The doctrine is dependent on the absence of explanation, and, although it is the duty of the defendants, if they desire to protect themselves, to give an adequate explanation of the cause of the accident, yet, if the facts are sufficiently known, the question ceases to be one where the facts speak for themselves, and the solution is to be found by determining whether, on the facts as established, negligence is to be inferred or not "

(9.) As stated by Winfield on Tort, 7th Ed., p. 199-

"The exclusion of the maxim does not, of course, necessarily lead to the conclusion that the defendant was not negligent. In Barkway v. South Wales Transport Co. Ltd, (1950) 1 AllER 392, B was travelling as a passenger in the defendants omnibus and was killed when it veered across the road and fell over an embankment. A great deal of evidence was given by the defendants and it was established that the cause of the accident was a defect in one of the tyres which might have been discovered before-hand if the defendant had required their drivers to report occurrences which could result in impact fractures. The House of Lords held that as the cause of the accident was known res ipsa loquitur did not apply, but that on the facts the negligence of the defendants was established."

The learned author, however, observes :

"1. If the defendant shows how the accident actually occurred and the true explanation is consistent with due diligence on his part, then he is not liable. 2. Even if he cannot explain the accident, if the defendant shows that there was no lack of reasonable care on his part or on the part of persons for whose negligence he is responsible, then again he has exonerated himself from liability."

Keeping these principles in view, we are not prepared to hold that res ipsa loqvitur applies to present case. The claimant was, therefore, not entitled to judgment by proving the fact of the accident alone. Even otherwise, the inference of negligence, if any, on the plea of res ipsa loquitur stands sufficiently rebutted by the Corporation and it is, therefore, exonerated from liability.

(10.) That brings us to the question whether the Corporation as a carrier of passengers is an insurer for normal risks attendant in case of an inevitable accident. The law on the subject is clear, and the answer must be in the negative. In Readhead v. Midland Rail Co., (1861-73) AllER 30, the Court of Exchequer had stated:

"There is no warranty to be implied in the contract of a general carrier of passengers insuring that he will convey the passenger safely to his journeys end or that the conveyance in which he travels shall be in all respects perfect for its purpose, i. e., free from all defects likely to cause peril although those defects are such that no skill, care, or foresight could have detected their existence. The obligation undertaken by a carrier of passengers is to take a high degree of care and skill, and it casts on the carrier a duty to exercise all diligence to see that whatever is required for the safe conveyance of his passengers is in fit and proper order. The absence of such care-in other words, negligence -could alone constitute a breach of his contract."

The liability of a common carrier of passengers is, therefore, limited. Its obligation is only to carry passengers with due care. The principles settled by the decision of Readheads case, (1861-73) AllER 30, were reaffirmed in Hyman v Nye., (1881-85) AllER 183. In that case the plaintiff had hired from the defendant a carriage, horses and a driver for a journey. While on the journey, a bolt in the under part of the carriage broke causing the horses to become frightened and to overturn the carriage, whereby the plaintiff was injured. It wis proved that neither the driver nor the horses had been at fault. The carriage had been properly built by a reputable firm and had been repaired some fifteen months before by a competent repairer. The defendant had no reason to suspect that the bolt was defective and the defect could not have been discovered by ordinary inspection. Lindley J., in stating the law, observed :

"Although a person who hired out carriages was not an insurer against all defects, he was an insurer against defects which care and skill could guard against; his duty was to supply a carriage as fit for the purpose for which it was hired as care and skill could render it, and if, while the carriage was being properly used for such purpose, it broke down, it became incumbent on him to show that the breakdown was not preventable by any care and skill."

So also, in Newberry v. Bristol Tramways and Carriage Co., (1911-13) AllER 747, the Court of Appeal stated:

"Carriers of passengers are not insurers of the safety of the person whom they carry. It is sufficient, to discharge the duty of care which lies on a carrier that he should adopt the best known apparatus, kept in perfect order, and worked without negligence by the servants he employs. If he does that, he ought not to be made responsible for the consequences of an extremely rare and obscure accident, which cannot in a business sense be prevented by any known means."

Such being, in our opinion, the law applicable to the case, it follows that the present claimant cannot recover any compensation for an accident which was due to a mechanical failure of the omnibus in which he was travelling. It is lamentable that the public are exposed to such dangers when travelling in a public conveyance but the law, as it is, provides for no remedy except on proof of negligence in claims involving third-party risks.

(11.) We would accordingly uphold the view of the Claims Tribunal and dismiss the appeal. Having regard to the very unfortunate circumstances of this case, it would not be fair to saddle the appellant with any costs. We would instead direct that the costs throughout shall be borne by the parties as incurred. Appeal dismissed.