N S JAYANANDAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The plaintiff is the appellant. The suit is for damages in tort for the injuries sustained by the plaintiff on account of the negligence of the 4th defendant, an employee of the Police Department under the 1st defendant, the State of Kerala, in driving a police jeep KLV 3065 on 10-3-1971 at about 2 p. m. at the road junction where the Vellayambalam-Thampanur road crosses the main road, the Vazhuthacaud-Thycaud road in Trivandrum City near the Women's College. The plaintiff was riding his motor cycle KLE 7945 with P. W. 5 at its pillion from North to South along the main road. As he reached the road junction, the 4th defendant driving the police jeep coming from the east crossed the main road at a high speed dashed against the motor cycle and knocked down the plaintiff and his companion rider P. W. 5. Both the plaintiff and P. W. 5 were thrown away from the vehicle they were riding and as a result of the accident the plaintiff sustained severe and serious injuries. Both the plaintiff and P. W. 5 were taken in the police jeep by the 4th defendant and dropped near the plaintiff's house. They were later taken to the Medical College Hospital, Trivandrum. The plaintiff was admitted as an in-patient and had to undergo an operation on account of a fracture on his left arm. He was put on plaster and had to be in the Medical College Hospital for several days. Thereafter, he was treated at the Sree Ramakrishna Mission Hospital, Sasthamangalam, as an inpatient. The plaintiff was in plastercast tilt June, 1972. The fractured bone did not set well and the plaintiff had to be admitted in the Medical College Hospital, Calicut, for a further major operation done on 12th June, 1972. Bone grafting was also done. He had to be operated again on 19th Feb., 1973 at the Medical College Hospital, Calicut. From the date of the incident on 10-3-1971 until Feb., 1973 the plaintiff had been in plaster-cast. After his discharge from the Medical College Hospital, Calicut, he had been undergoing Ayurvedic treatment and was also taken to Madras for treatment by Orthopaedic experts. The plaintiff, therefore, claimed general and special damages amounting to Rs. 47.000/ against the defendant in para 22 of the plaint, he has limited his claim to a sum of Rs. 20,000/- for the purpose of court-fee and jurisdiction. He has, however, stated that in case the Court finds that he is entitled to the entire amount of Rs. 47,000/-, he is prepared to pay the additional court-fee as and when called upon to do so. According to the plaintiff, the accident occurred due to the negligence of the 4th defendant, an employee of the 1st defendant-State of Kerala and he is entitled to recover damages from all the defendants. The 1st defendant is the State of Kerala represented by the Chief Secretary to the Government of Kerala, Trivandrum. The 2nd defendant is the inspector General of Police, Kerala, the 3rd defendant is the State insurance Officer, Trivandrum and the 4th defendant is a driver of the Police Department, who was driving police jeep KLV 3065 in a rash and negligent manner for the reason of which the accident occurred and the plaintiff sustained injuries. The suit is filed after due notice to defendants 1 to 3 under Sec. 80 of the Civil P. C. No notice under Section 80, C. P. C. was, however, issued to the 4th defendant, the police driver. The 4th defendant remained ex parte and filed no written statement. Defendants 1 to 3 filed a joint written statement denying their liability for the suit claim. According to the defendants, the accident was due to the negligence of the plaintiff, in riding his motor cycle in a rash and negligent manner. He was tried for an offence punishable under Section 279, I. P. C. before the Sub Magistrate II, Trivandrum, in C. C. No. 1154 of 1971 but was acquitted. The defendant denied the liability of the 3rd defendant for damages as vehicles owned by the Government are exempt from third party insurance and are not insured with the State insurance Department.

(2.) The trial Court dismissed the suit holding that the plaintiff has not proved that the collision between the motor cycle and the police jeep was as a result of rash and negligent driving of the jeep by the 4th defendant. It was also found that the suit is defective for want of a notice under Sec. 80, C. P. C. to the 4th defendant. The trial Court entered a finding that in case the plaintiff is found entitled to damages, it is reasonable to fix the quantum at Rs. 10.000/-. It is against this decision of the trial Court, the plaintiff has come up hi appeal.

(3.) The counsel for the plaintiff-appellant submits that the plaintiff is confining his claim for damages to Rs. 20.000/- and he is not pressing for relief for the larger amount mentioned in the plaint. The learned Additional Advocate General appearing on behalf of the respondent concedes that if the claim for damages is otherwise sustainable, the quantum may be fixed at Rs. 20,000/-, There is, therefore, no dispute in this appeal relating to the quantum of damages to be fixed in case the plaintiff is found entitled to relief in the suit.