P V GEORGE THARAKAN Vs. KOCHAPPIN NARAYANAN

JUDGEMENT

(1.) Automobile accidents on account of negligent driving are escalating in the Kerala State so steeply, with attendant loss of life and limb, that the law, being charged with realism and humanism, has to operate effectively and disenchant those who tempt courts with ersatz contentions out of touch with the facts of life. The present suit was one for damages, the cause of action set out being that the plaintiff's child, 5 years old, was hit by a car (KLE. 246) driven by the 2nd defendant and belonging to the 1st defendant, on the Edacochi - Aroor road at a spot where there are shops, residential houses and heavy vehicular traffic. Admittedly, on 20th January, 1962, at about 1p.m. the plaintiff's child was knocked down by this car and sustained multiple injuries, after having been thrown forward by several feet. Later he succumbed to the injuries., notwithstanding the medical aid given from a neighbouring hospital. The trial judge moralised, with a motorist's slant, that the negligence, if any, was that of the child's irresponsible parents and not of the car driver. His judgment dismissing the suit was assailed in appeal and the learned District Judge held that, on the facts differently found by him and in the light of the correct law as laid down in 1965 KLT 1174 , the 2nd defendant was guilty of negligence and that the master, the 1st defendant, also was vicariously liable in a sum of Rs. 2000. We are not concerned with the quantum of the compensation but only with the culpability of the defendants since no appeal has been filed against the moderate award. The 2nd defendant has remained ex parte but the 1st defendant, the more vulnerable financially, has however challenged his liability by canvassing the correctness of the finding of negligent driving.

(2.) More facts must be mentioned before proceeding to apply the law. It is common case that the Cochin - Edacochin road where the accident took place is busy with pedestrian and wheeled traffic, particularly during day time. The liberal sprinkling of schools by the road side and the crowded residential population pressing on the highway make women and children walking along the road or even cutting across a ubiquitous feature. The road is rather narrow at the place of occurrence, relative to the volume of traffic, the evidence being that this stretch, though straight, is only about 21 ft. wide at the tragic spot, a ribbon of 16 ft. being black topped and a small strip on either side remaining untarred. Judging by the tyre marks the car stopped at a distance of about 26 or 30 ft. beyond the point at which the brake was pressed, throwing light on the speed. Padmanabhan the child, was thrown off about 4 yards from where he was hit and the vehicle itself was damaged, its left front fog light glass and bulb having been broken by the dash and the bracket which held the light itself bent by the impact. It is further seen from the mahazar, Ext. P 9, and other evidence in the case that the car had left the tarred track and got on to the untarred portion when it dashed against the victim. If the ordinary inference from this concatenation of circumstances is that the driving was careless and even otherwise one should have expected the 2nd defendant, to be examined to explain the factors which led to the accident: but he has discreetly desisted from deposing to his version. The reason given for the omission is that the owner had dispensed with the services of the driver and his present whereabouts were not known to him. No steps are seen to have been taken to get at him nor is any reason assigned why the driver was discharged, the case of the owner being that there was no negligence on his part. The excuse given was just a thinly disguised pretext to keep away from that inconvenient cubicle for untruthful individuals and at the same time to avoid the adverse inference arising from such absence. The 1st defendant would not say that he dismissed the driver for fear that it would imply some kind of misconduct on the part of the 2nd defendant. Nor could he Say that he was still in his employ lest he be asked to produce him for examination. The 1st defendant was in an unenviable fix. The non examination of the 2nd defendant, in these circumstances, damages the case of the defendants.

(3.) On the facts stated above, there was considerable argument about the negligence of the 2nd defendant, the 1st defendant being only vicariously liable. Counsel for the appellant submitted that the road was straight and it was noonday, and so, the speed of 30 miles per hour at which the appellate court thought the vehicle was moving at the time of the accident could not be said to be excessive. He further argued that the house of the child was on the west, that the accident took place on the eastern side of the road, probably because Padmanabhan had come from the east running towards his house, and the car hit him unexpectedly, there being no duty to be extraordinarily circumspect.