OMANA Vs. DAVID

JUDGEMENT

(1.) The plaintiffs in a suit for damages under the Fatal Accidents Act are appellants in this case. The suit was dismissed by the lower court holding that the accident occurred not due to rashness and negligence of the driver.

(2.) The material averments in the plaint can be summarised as follows: The first plaintiff is the wife and the other plaintiffs are the children of deceased Bhaskaran alias Sivarajan. He was given a lift by the second defendant, the driver of Lorry bearing Registration No. KLE 2009 on 26-4-1973. The lorry met with an accident and the deceased sustained injuries on his right leg. He was immediately taken to the Kothamangalam Hospital and after first aid was removed to the District Hospital, Ernakulam where his right leg below the knee had to be amputated. However, he died on J4-5-1973. While in the hospital, he suffered pain and the first plaintiff had to spend about Rs.2,500/- for his treatment and also another amount of Rs.500/- towards his funeral expenses. The deceased Bhaskaran alias Sivarajan was a driver in another lorry and it was for the purchase of some spare parts for that lorry he travelled in the lorry which met with the accident. The incident took place as a result of rash and negligent driving of the second defendant and the first defendant as the owner of the lorry and employer of 2nd defendant was vicariously liable for the loss and damage. The plaintiffs restricted their claim to a total sum of Rs.75,000/-.

(3.) Defendants 1 and 2 in their written statement admitted that the accident occurred on 26-4-1973 but contended that the first defendant had not permitted the second defendant to take any passenger in the cabin of the lorry and that the deceased travelled in the lorry at his own risk. The second defendant was giving side to a lorry which came in the opposite direction and at that time the brake of the lorry failed all on a sudden and the lorry capsized and the deceased sustained injury.