STATE OF K ERALA Vs. PADMAVATHI

JUDGEMENT

(1.) O. K. Bhaskaran, the husband of the first plaintiff and father of the two minors, plaintiffs 2 and 3, was a reputed mechanic, and was the proprietor of the workshop, Kothamangalam Auto Engineers. He was engaged by the 1st defendant, the Kerala State Electricity Board, through one of its Junior Engineers, to carry out the repairs to its road roller KLK. 8702 which was garaged in an unserviceable condition at Sholayar for a number of years. The repairs having been carried out on 15-7-1970, the next day at about 1 p.m. it was taken out of the garrage to be loaded in a lorry at the store house of the 1st defendant Board. It was one Krishnankutty, a driver in the permanent employment under the 1st defendant, who took out the road roller from the garrage. The road roller overturned on the road near the post office at Sholayar at about 1 30 p. m. Though Krishnankutty the driver, escaped unhurt, the said Bhaskaran who accompanied him to observe the performance of the vehicle after the repairs, with a view to rectify the mistakes, if any, detected, got under the overturned road roller. He died instantaneously as a result of the injuries sustained by him. Bhaskaran was 42 years old at the time of his death, and according to the plaint averments, he was of good health and physique, and he could have normally expected to live at least for another 25 years to earn not less than Rs. 700/- per month. In the plaint it is also averred that death of Bhaskaran was as a direct result of negligence and rashness with which the road roller was driven by the driver Krishnankutty, the employee of the 1st defendant, in the course of his employment. For the mental and physical pain suffered by him due to the accident, and loss of the income to the estate of the deceased Bhaskaran, the plaintiffs claimed in the aggregate, a sum of Rs.75,000/- by way of damages and compensation through a petition before the Chairman of the 1st defendant Board on 27-7-1970. The Ist defendant Board by itself did not pay any amount, but only referred the matter to the 2nd respondent, the State Insurance Officer, Kerala State, who, while upholding the claim, awarded only an amount of Rs. 1,500/- by way of compensation. The amount having been found to be too low, the plaintiffs did not accept it, but filed a suit for recovery of the sum of Rs. 75,000/-. The Trial Court gave a decree for Rs. 20,000/- with interest at the rate of 6% per annum from the date of plaint against the defendants with proportionate costs. This appeal has been preferred by the 2nd defendant feeling aggrieved by the decision of the Trial Court. A memorandum of cross objections was filed by the plaintiffs claiming by way of additional compensation a sum of Rs. 16,000/- over and above what was awarded by the Trial Court.

(2.) The Government Pleader appearing for the appellant, 2nd defendant, contended that the court below ought to have found that the road roller at the time of the accident was driven by Bhaskaran (the deceased) and his own negligence and rashness contributed to the accident and to his death resulting therefrom. It was also submitted by him that Bhaskaran not having been an employee of the 1st defendant Board, and the accident and the resultant death not having occurred in the course of employment, the plaintiffs were not entitled to claim any compensation on the facts and in the circumstances of the case.

(3.) Under Issue No. 1, discussed in Para.6 to 10 of the judgment appealed against, the finding or the Trial Court is that it was Dw. 2 Krishnankutty, the driver in the employment of the 1st defendant Board who drove the road roller at the time of the accident. The Trial Court disbelieved the evidence of Dw. 2 that it was Bhaskaran who was at the wheels at the time of the incident. The evidence would go to show that at the time of the accident there were two persons in the road roller; Bhaskaran and Dw. 2 Krishnankutty, out of whom, unfortunately, Bhaskaran died and Krishnankutty survived. It is only natural that Dw. 2 out of the instinct for self protection, would not own up the responsibility for the accident resulting in the death of a man. Dw. 1, the Junior Engineer who had taken Bhaskaran to Sholayar, had admitted that the repairs bad been completed on 16-7-1970; there was, therefore, no need or occasion in the normal course for Bhaskaran to drive the road roller when it was being taken for the purpose of loading into a lorry. Moreover. Dw. 2 had admitted in his evidence that it was be who started the road roller. On a consideration of the evidence on record we feel convinced that the Trial Court was fully justified in drawing the inference that the road roller at the time of the accident was driven by none other than Dw. 2 Krishnankutty himself. There is no other circumstance brought to our notice to persuade us to take a different view. On the basis of the evidence discussed in Para.6 to 10 of the judgment the Trial Court has also recorded a finding that the accident occurred due to the rashness and negligence of Dw. 2, the driver of the 1st defendant Board. Once it is found that it was Dw. 2, who was at the wheels at the time of the accident, in the absence of any other evidence, it has to be concluded that the accident was the result of the rashness and negligence in driving the road roller by Dw. 2 as rightly found by the Trial Court.