E.S. Venkataramiah, J.
1. The incident with which we are concerend in these appeals took place at about 12-15 P. M. on 2-7-1964 along with the road running between Mangalore and Bhatkal. A Bus belonging to the Mysore State Road Transport Corporation (hereinafter referred to as the corporation) bearing No. MYG 4331 was being driven from Byndoor to Bhatkal. After the said bus left Byndoor at a place near Surgihalli, it was going in a down-gradient after negotiating an Up gradient earlier. Earlier when the bus had reached the top of the gradient, the driver of the bus noticed that a bullock-cart had been left unattended on the left side of the road. When he came near the said cart, he took the bus to the right side of the road and when he did so, the right wheels of the bus got on to the mud portion of the road. Within a few minutes thereafter the right wheels sank in the mud on account of the soil at that place giving way. As a consequence thereof, the bus toppled to the right side. There were a number of passengers in the bus at that time amongst whom were Basthi Kasim Saheb and Albert Dias, the two claimants in these cases. On account of the falling of the bus, according to the claimants, they sustained injuries and become entitled to claim compensation from the corporation. Thereafter Basthi Kasim Saheb filed C. C. No. 46 of 1964 and Albert Dias filed C. C. No. 44 of 1964 On the file of the Motor Accidents Claims Tribunal. South Kanara. They alleged that the accident took place on account of the negligence on the part of the driver who was driving the bus belonging to the corporation and, therefore they were entitled to get damages.
2. The corporation while admitting that the bus fell down at the place referred to above and that the claimants were two of the passengers in the said bus at that time, pleaded inter alia, that the incident was the result of the inevitable accident, and that it was not on account of any negligence or rashness on the part of the driver of the bus. It was further pleaded that on account of the mansoon rains the soil had become loose and it was only on account of the right wheels of the bus unexpectedly sinking into the mud, the bus fell down. It was also alleged that the driver of the bus was not able to foresee that the bus would fall down by driving the bus in such a way that two of its right wheels were on the mud portion of the road at the place of incident.
3. The tribunal below recorded the evidence adduced by the parties and after hearing them, made an award holding that the incident took place on account of the negligence of the driver of the bus and that the corporation was liable to pay a sum of Rs. 35,000/- to Basthi Kasim Saheb and Rs. 6,100/- to Albert Dias by way of compensation. Aggrieved by the awards passed by the tribunal, the corporation has filed M. F. A. Nos. 14 and 15 of 1968. In M. F, A. 14 of 1968. Albert Dias has filed cross-objections claiming higher compensation than what has been awarded by the tribunal. M. F. A. 37 of 1968 is a cross-appeal filed by Basthi Kasimsaheb claiming higher compensation.
4. Although the tribunal has passed two separate awards in the two claim cases Nos. 44 and 46 of 1964, it has recorded common evidence in both the cases. We, therefore, find it convenient to dispose of these appeals by this common judgment.
5. It is well settled and it is not disputed before us that a claimant can succeed in his claim only when he establishes that the incident had taken place on account of the negligence on the part of the driver of the motor vehicle. In order to decide the above, question, it is necessary to deal with the evidence adduced by the parties before the Court.
6. The undisputed facts in this case are; that just before the place where the incident took place, the bus had to negotiate an Up gradient and that it was only after the reaching the top of the road it was possible for the driver of the bus to notice the cart in question standing at some distance on the down-gradient of the road. Basthi Kasim Saheb has been examined as P. W. 1 and Albert Dias has been examined as P. W. 10. They have admitted in the course of their deposition that it was only after reaching the top of the up-gradient it was possible to see the cart in question. Whereas the driver of the bus who has been examined as P. W. 1 in this case has stated that he could see the cart when he was only at a distance of about 25 feet, the claimants have stated that it was possible to see the cart even from about 100 feet away from where it was standing. The topography of the scene of incident is clear from a sketch. Exhibit A-4, which was prepared by the bus-inspector of police, T. H. Thyampunchi. P. W. 6. It shows that at that place the tarred portion of the road was 12 feet in width and on either side of the tarred portion, there were mud portions of the road. Exhibit A-4 shows that on the left side the untarred portion Was 16 feet wide and on the right side the untarred portion of the road was 8 feet wide. According to the sketch, the right wheel of the bullock-cart was touching the left extremity of the tarred portion of the road. In other words, immediately to the right side of the cart there was the tarred portion of the road. It is also not disputed in this case that the wheel base of the bus measured 8 feet in width. From the sketch it is seen that there is a wheel mark on the mud portion of the road lying to the right of the tarred portion leaving a gap of 3 feet between the right extremity of the tarred portion of the road and the wheel mark. The distance therefore between the right side of the cart and right wheel of the bus was in the order of 15 feet. The wheel base of the bus being 8 feet, it would follow that the bus was driven in such a way that there was a space of 7 feet between the right side of the bullock-cart and the left side of the bus. The road in question is one maintained by the Government.
7. The question for consideration Is whether the act of the driver of the bus in the circumstances of the case has given rise to an actionable wrong. Negligence is failure in the duty to take due care. The expression 'due' connotes that degree of care which a reasonable man ought to take in a given set of circumstance. What may amount to a 'negligent' act in a particular place and occasion may not be a negligent act in another place or occasion. In deciding what care was called for by a particular situation one useful test is to enquire how obvious the risk must have been to an ordinary prudent man. The question in each case therefore depends upon its own facts.
8. In the instant case as already stated the tarred portion of the road was only 12 ft, in width although the total width of the road including the untarred portions on either side was 36 feet. It is not disputed that it was a road on which motor buses were plying as stage carriages, and that the width of each bus would be not less than 8 feet. Under these circumstances whenever two buses cross each other or when one bus overtakes another, necessarily one set of wheels of each bus has to pass on the untarred or mud portion of the road. It follows that it is normal for buses plying on the road being driven partly on tarred portion and partly untarred portion and such driving, therefore, cannot be considered as unusual. Albert Dias (P.W. 10) one of the claimants who is himself a lorry driver by profession has also stated in his deposition that 'if the space is not sufficient, then the vehicles are taken on such untarred portions of the road and there could be no danger in so doing'. The evidence of the driver of the bus (RW-1) is that when he found the bullock-cart on the road he tried to take the bus a little away from the cart and when he did so the right wheels of the bus moved on to the untarred or mud portion of the road. The front right wheel of the bus got into the mud to a depth of 21/2 feet and that when he attempted to steer the bus to the left in order to bring the bus fully on to the tarred portion, the bus fell down towards right. It was only after it fell down he came to know that the soil at that place had become loosened owing to rains. He has denied the suggestion that he knew before the incident took place that the untarred portion of the road contained loose soil. It is no doubt true P.W. 10 Albert Dias has stated that it was known to one and all that the said stretch of road which had been widened two years prior to the date of incident contained loose soil, but he does not say that the driver of the bus knew it On the other hand on the above question we have the evidence of the Sub-Inspector of Police P.W. 6 who states that the mud portion of the road was not covered with fresh mud. From the evidence of P.W. 6. P.W. 10 and R.W. 1 referred to above, it is clear that the road had been widened nearly two years prior to the incident, that there were no visible signs of fresh mud being present on the untarred portion of the road (and that the bus-driver) did not know beforehand that the untarred portion would turn out to be treacherous at the place of incident. It is also clear that ordinarily buses were being driven partly on tarred portion and partly on untarred portion of the road at that place. According to Exhibit A-14 the notice issued by P.W. 10, the bus was going at a speed of 35 miles per hour just before the incident took place. Even that speed does not appear to us to be an unreasonable one having regard to the fact that the bus was being driven on a straight road on which there was no other traffic at the time of the incident. But. R.W. 1 the driver has stated that he was driving the bus at a speed of 25 miles per hour and when the front right wheel sank in the mud to an extent of 21/2 feet depth, the bus slowly fell down. Hence we are of opinion that the bus was also not being driven at an unreasonable speed.
9. Sri B. P. Holla, the learned counsel for the claimants, however, argued that it was possible to drive the bus only on the tarred portion of the road and that if Dart of the bus had not been driven on the untarred portion the incident would not have taken place. It was, therefore, contended that the case of negligence on the part of the driver had been made out and that the owner of the bus was responsible for the direct consequences of the said negligence. It may be that the bus may not have fallen down if the bus had been driven on the tarred portion only but tile question is whether the act of taking a part of the vehicle on the untarred portion which is also a part of the road is a negligent act As already observed by us such driving was not an unusual act at all and particularly when a bus is either overtaking or crossing another vehicle ordinarily a Part of the bus would be on the untarred portion of the road. In that situation it is reasonable to hold that the driver of a bus, unless he had previous notice of the special characteristics of any particular stretch of road, would not be acting negligently merely because he drove the bus in that way.
10. Sri. Holla next relied upon a decision of this Court in Seethamma v. Benedict Dsa. (1966) 1 Mys LJ 576 = (AIR 1967 Mys 11) and contended that the presence of the bus on the off-side of the road was prima facie evidence of negligence of the driver. The above argument overlooks the fact that in the circumstances of this case it was reasonable on the part of the driver to depart from the correct side, which is an exception to the principle relied upon by Sri. Holla even according to the above decision. Whenever a bus has to overtake another vehicle It has ordinarily to be driven on the right side of the other vehicle and in the instant case as already observed the bus was driven only seven feet away from the cart and that as it is clear from the sketch, Exhibit A-4 there was still 5 feet of road to the right of the bus when the incident took place.
11. The facts of the case in Gobald Motor Service Ltd. v. R. M. K. Veluswami, : [1962]1SCR929 on which reliance was next placed on behalf of the claimants are clearly distinguishable from the present case. In that case the incident took place not on the main road but on the off-side of the road and the bus had uprooted a stone which had been planted by the side of the road then hit a tamarind tree resulting in its bark being peeled off and then came to a halt after moving some distance. Hence the above case is of no use to the claimants. Similarly the decision of the Punjab High Court in State of Punjab v. Guranwanti is not of any use to the claimants. In that case it is observed that it is the duty of the driver to be on the look out for any possible obstruction on the road or even in the air and to take reasonable steps to avoid the obstruction and that if the driver fails to do so he is acting negligently. In the instant case, there being no evidence showing that the driver knew beforehand that the road contained loose soil or that there were any other visible signs of the impending danger, it cannot be held on the basis of the above decision that the driver had committed a tort.
12. Sri. Massilamani, the learned counsel for the corporation, relied upon two passages appearing in Charles worth on Negligence which are extracted in P. Arumukon v. Rethnammal. (1966 ACJ 237) (Mad.) which read as follows :--
'The facts, however, must be such as to put the matter beyond a mere surmise or conjecture; they must lead to an inference which is a reasonable deduction from the facts actually observed and proved. If the evidence established only that the accident was Possibly due to the negligence to which the plaintiffs seek to assign it, their case is not proved. To justify the verdict which they have obtained the evidence must be such that the attribution of the accident to that cause may reasonably be inferred. If a case such as this is left in the position that nothing has been proved to render more probable any one of two or more theories of the accident then the plaintiff has failed to discharge the burden of proof incumbent upon him. He has left the case in equilibrium and the court is not entitled to incline the balance one way or the other.'
and
'Inevitable accident is that which the party charged with the damage could not possibly prevent by the exercise of ordinary care, caution and maritime skill; I know no distinction as regards inevitable accident between cases which occur on land and those which occur at sea.'
13. On a careful consideration of the submissions made on behalf of the parties to these appeals, we feel that while determining the liability of a person on the ground of negligence, one of the essential factors though not an exclusive or sole factor to be taken into account is whether a reasonable man could have foreseen in a given situation that the act complained of was likely to result in damage in respect of which action is taken. In the instant case neither the existence of such a factor nor any other factor recognised by law as establishing the negligence of the driver has been proved by the claimants on whom the burden of proof lies. Hence, we hold that the incident in which the claimants are said to have suffered injuries was not the result of any negligence of the driver of the bus in question, In view of our finding that there was no negligence on the part of the driver of the bus, the question of determining the damages to which the claimants are entitled to does not arise. Hence we do not express any opinion on that question.
14. We, therefore, set aside the awards passed in claim cases Nos. 44 and 46 of 1964 by the Tribunal below and dismiss the claims preferred in those cases.
15. In the result. M; F. A. Nos. 14 and 15 of 1968 are allowed and the cross-objections in M. F. A. No. 14 of 1968 and M. F. A. No. 37 of 1968 are dismissed. There will however be no order as to costs in this court as well as in the Tribunal below.