K G BHASKARAN Vs. THANKAMMA

JUDGEMENT

(1.) These appeals arise from a suit filed by the first respondent for damages for injuries sustained by her in a bus accident. The appellant in A. S. No. 300 of 1969 is the 1st defendant in the suit to whom the bus involved in the accident, belonged. The appellant in A. S. No. 393 of 1969 is the 3rd defendant in the suit, who was the driver of the bus and an employee of the 1st defendant. The plaintiff 1st respondent has filed a memorandum of cross objections claiming an enhancement of the damages and also praying for interest on the amount decreed from the date of the plaint.

(2.) We may first deal with A. S. No. 300 of 1969. The facts may be briefly stated now. The 1st respondent plaintiff was a passenger in a transport bus KLR. 3855 on 17-12-1960, the permit of which stood in the name of the 2nd defendant. The 1st defendant was, however, the real owner of the said bus and he was conducting the bus service. The 3rd defendant, who was the driver of the bus, permitted his brother, who, according to the plaintiff, had no licence and was an inexperienced driver, to drive the bus. The bus was driven in a rash and negligent manner and, as result of the careless and dangerous driving, it swerved off from the road and dashed against a coconut tree with great force which caused the top of the tree to be broken. , The 1st respondent, who was travelling in the bus, bad her arm fractured and also sustained other injuries as a result of the accident, and her case is that the accident was directly the result of the negligent and dangerous driving of the bus by the 3rd defendant's brother who was unauthorisedly permitted by the 3rd defendant to drive the bus. The plea of defendants I and 3 was that the accident took place because a child crossed the road immediately in front of the bus and the driver, in an attempt to save the child, swerved the bus and the accident was the result of the attempt. It was also contended by them that the 3rd defendant himself was driving the bus, that it was proceeding only at a very low speed of 10 to 15 miles and that the accident was not caused by reason of any rash or negligent driving. The Trial Court found that the bus was being driven by the 3rd defendant's brother, that it was proceeding at a high speed and that the accident occurred because the driver was unable to control the vehicle. The plea of the contesting defendants that the accident was caused by reason of a child suddenly crossing the road was disbelieved by the Trial Court and it was held that there was no mechanical defect so far as the bus was concerned which could have caused such an accident. The lower court was of the view that the plaintiff was entitled to Rs. 5000, by way of general damages and Rs. 500/- for medical expenses incurred by her. Special damages to the extent of Rs. 105-15 was also allowed in favour of the plaintiff who was a teacher for the loss sustained by her by reason of her being compelled to take leave on loss of pay during the course of the medical treatment. In the result, the 1st respondent was given a decree for Rs. 5605.15 against defendants 1 and 3 with future interest at 6% and costs.

(3.) On behalf of the appellant (1st defendant) it was urged that the lower court had found that the 3rd defendant had unauthorisedly permitted his brother to drive the bus, that the appellant was therefore not liable for damages as the accident had been occasioned not by his employee but by a stranger and that the lower court was therefore in error in granting a decree against the appellant. In support of this contention, certain passages from Winfield on Tort, and the observations in Twine v. Beans Express Limited (62, The Times Law Reports 458) were relied on. We will presently refer to these observations after discussing the general law on the subject.