KUMARAN Vs. AUGUSTINE

JUDGEMENT

(1.) Defendants 1 and 2 are the appellants. A suit was filed against them by the plaintiff for recovery of Rs l,00,000/- as compensation for the injuries sustained by him when a motor vehicle owned by the first defendant and driven by the second defendant hit and knocked him down on the road. On 30-5-1972 at about 2-15 P.M. bus No. KLE 4327 which was then running towards the east on the Ernakulam - Mattancherry road in front of the southern gate of the Naval Base hit the plaintiff and knocked him down and thereby serious injuries to the head and limbs were sustained by the plaintiff. He became unconscious and was removed immediately to the Government General Hospital, Ernakulam wherein he was an inpatient from 30-5-1972 to 1-7-1972. Though he was discharged on 1-7-1972, on account of the sudden hit of the bus the occipital area and the brain of the plaintiff got damaged and he became partially blind and lost his coordination in vision. Even after expensive treatment and expert attention there is no improvement to the plaintiff's physical and mental condition. Because of the loss of sight and memory power, the plaintiff has become incapable of following his erstwhile profession, namely watch - repairing which requires high expertise and skill and keen eye sight. According to the plaintiff he has lost his earning capacity permanently. The bus was driven at the time of the accident by the second defendant in a very rash, careless and negligent manner and the plaintiff sustained the injuries on account of the second defendant's negligence. The plaintiff estimated the compensation at Rs. 1,80,053.44 under three distinct heads, Rs. 5,000/- for pain and suffering, Rs. 2,253.44 for treatment expenses and compensation for loss of future earnings at Rs. 1,72,800/-. The defendants contested the claim. They admit that the bus was being driven by the second defendant but he was driving the bus at a low speed in order to stop at the Naval Base bus stop Before the bus stopped the plaintiff who was on the northern side of the road suddenly crossed the road to the south, and as a result, to avoid a fatal accident the bus had to be swerved to the south and in that process it hit him and he fell down. The allegation of rash and negligent driving was totally denied. The nature of the injuries sustained by the plaintiff and the amount claimed as damages were also denied. The plaintiff was only a watch repairer getting a small income daily and that occupation is continued by the plaintiff even after the accident. There was a criminal case as CC. 96 of 1973 against the second defendant and he was acquitted by the court. The allegation that the plaintiff has undergone severe pain and mental shock is denied. His future earning capacity is not lost at all and whatever the amount the plaintiff is entitled to has to be claimed against the Insurance Department as the vehicle was insured under the Third Party Scheme. After the written statement of the defendants, the State Insurance Department, the Insurer, was also made a party. The department's contention was only that the claim is excessive and if the plaintiff obtains a decree against defendants 1 and 2 the third defendant is liable only up to Rs. 20,000/ The lower court found that the accident took place due to the rash and negligent driving of the bus by the second defendant and not due to any negligent act of the plaintiff. The court also found that the plaintiff sustained injury and that was the direct and proximate result of the accident. Rs 3,000/- was awarded towards shock, pain and suffering, Rs. 1,000/- was awarded towards medical expenses and a sum of Rs 76,464/- was awarded as general damages, by way of loss of future earnings. The liability of the third defendant was determined as Rs 20,000/- and a decree was granted to recover this amount from defendants 1 and 2. This decree is challenged in this appeal.

(2.) The first point that arises for consideration is whether the second defendant was driving the bus in a rash and negligent manner. The plaintiff's case is that he was proceeding towards west along the southern side foot path on the Ernakulam - Mattancherry road in front of the southern gate of the Naval Base and the bus was running towards the east coming from Mattancherry. That was running along the northern side of the aforesaid road, but it suddenly swerved to the south, ran off - side the road, hit the plaintiff and knocked him down. But according to the defendants, the second defendant was only running the bus at a slow speed in order to stop at the nearby Naval Base bus stop, but suddenly the plaintiff without taking any precaution negligently crossed the road and therefore was hit by the bus and he fell down. To avoid a fatal accident the bus had to be swerved to the south.

(3.) The issues as framed would appear to put the burden on the defendants. That is clearly wrong. In a case of this nature it is for the plaintiff to prove that the defendants are negligent. The plaintiff has let in some oral evidence and also relies on the principle of the maxim Res ipsa loquitur to establish the liability of the defendants. The appellants' counsel prefaced his argument with a reference to the decision in Parameswaran Pillai v. Sirkar (19 TLJ 1298) and also the decision in 1969 ACJ 19. The relevant passage from the former case at page 1301 read as follows: