SIVARAMAKRISHNA IYER Vs. SANKU KUMARI

JUDGEMENT

(1.) This is an appeal by the 1st defendant in O. S. 180 of 1951 on the file of the District Judge of Anjikaimal, against whom a decree has been passed for recovery of damages suffered by the plaintiff as a result of the negligent driving of the 1st defendant's bus by the 2nd defendant.

(2.) The plaintiff's case was that he along with certain others were pulling a handcart loaded with timber through the Chittur Road, Ernakulam and while thus proceeding the second defendant in the case who was a driver of bus No. 3669, owned by the 1st defendant dashed against the handcart due to his rash and negligent driving. The plaintiff's case is that he was injured, was an inpatient for 27 days in the hospital and even after his discharge he had to continue the treatment and that he is even now not in a fit condition to work and earn his livelihood and that he is permanently disabled. The plaintiff was a cooly by profession and was living by his manual labour and occasionally he was going out for fishing and making some income. He was thus earning Rs. 2-8-0 to Rs. 3/- a day with which he was maintaining himself and his family. He claimed Rs. 3000/- as compensation for being permanently disabled due to the accident, Rs. 250/- for his medical expenses and Rs. 500/- for his mental pain and shock. A decree was claimed against the 1st defendant being the master of the 2nd defendant. The owner of the bus was insured against third party risks and the insurers the Travancore-Cochin State Insurance Officer was subsequently added as third defendant in the suit. Although it was originally contended by the 3rd defendant that there was no negligence or rashness, subsequently when the 2nd defendant was convicted by the criminal court for rash and negligent driving, the third defendant filed an additional written statement stating that he does not press his contentions against the plaintiff's claim for compensation but was questioning only the quantum to be awarded by way of damages.

(3.) The important questions that arise for determination in this appeal are whether the accident was due to the rash and negligent driving of the second defendant and whether the plaintiff had sustained injuries on account of the accident, and secondly what is the correct amount of damages that should be awarded. It is not disputed that the 1st defendant was the owner of the Pioneer Motor Service which owned the bus in question. It is also not disputed that the second defendant was the driver of the bus under the 1st defendant, and that he was driving the said vehicle on 23-11-1947 when the accident occurred. Both the 1st defendant and 2nd defendant denied that the bus was driven negligently and recklessly and also that the vehicle was driven at a dangerous speed. Apart from the evidence of P. W. 5, who is the plaintiff, two other disinterested witnesses P. Ws. 2 and 3 have been examined. P. W. 5 would have it that on 8th Vrischigam 1125 himself and some other coolies were drawing a handcart along the Chittur Road from north to south, that they were proceeding on the extreme eastern side, that he was standing on the western side and drawing the handcart and when they had reached in front of the house of one Marayil Nanu Menon, the bus driven by the second defendant was coming at an excessive speed without even sounding the horn, that it struck against him and that he got jammed in between the bus and the cart and he says that the accident occurred because of the rash and negligent driving of the second defendant. He says that the second defendant could have easily seen the handcart and if only he was careful the collision would not have occurred. He says that due to this accident there was fracture of his ribs and that he had sustained other injuries. He says that he was an inpatient in the hospital for 27 days and he was treated by P. W. 1, the medical officer. No cross examination was directed challenging the fact that it was because of the rash and negligent act that the accident occurred. Cross examination was only to show that he was not permanently disabled, P. W. 3 is another workman who was drawing the cart. He also supports the version given by P. W. 5 about the overspeed and that the accident was the result of the rash and negligent driving of the bus driver. P. W. 2 is a rickshaw puller who was at the spot and is an eyewitness to the incident. He also speaks about the overspeed and that the accident took place because of the rash and negligent driving of the second defendant, the driver. There was no serious cross examination of these witnesses and nothing has been shown as to why they should come and give false evidence.