P.B. KADER Vs. THATCHAMMA

JUDGEMENT

(1.) THE parties to these appeals invite the Court to evaluate life, which is priceless, by the negative device of assessing the loss inflicted by death on those who lived on the deceased's longevity. In this mundane world, even the irreparable can be repaired somewhat by money and the law computes compensation for loss of life as 'a hard matter of pounds, shillings and pence', based not on 'sentimental damage, bereavement or pain or suffering' but on 'a reasonable expectation of pecuniary benefit as of right or otherwise, from the continuance of the life'.

(2.) A stage carriage, belonging to the 1st defendant -company, was plying, with lethal rashness, on the Vypeen -Pallipuram road on the ill -starred day, the 12th December, 1959. This lovely island has but rugged roads and the working -class denizens, who make a livelihood by employment outside the island, depend largely on buses for their daily journeys. Three such workmen by name Ande Chouro, Joseph Sylvian and Pathrose Raphael, all employed in Volkart Bros., were on their way to their work -place in the morning that day. According to the plaintiffs, the 1st defendant's overloaded bus, propelled recklessly by its driver, barged against a 'waterpipe pillar,' turned turtle and, as a result, several persons sustained serious injuries of whom the three men later succumbed to their injuries and died. All the three were the breadwinners of their poor families and on their death the dependants were cut adrift and so, they claimed compensation under the Fatal Accidents Act, Act 13 of 1855 - -for short, called the Act - -by way of pauper suits, which were duly resisted by the owner of the bus, the 1st defendant company, both regarding culpability and quantum of compensation. The trial Court overruled the pleas of the defendant on both heads and decreed damages to each set of defendants in substantial sums of Rs. 13,110 in O.S. No. 20 of 1955 of the Principal Sub Court, Ernakulam (O.S. No. 46 of 1961 of the Sub Court, Cochin) (Chouro), of Rs. 21,040 in O.S. No. 21 of 1965 of the Principal Sub Court, Ernakulam O.S. No. 48 of 1961 of the Sub Court, Cochin (Sylvian) and of Rs. 23,001 in O.S. No. 22 of 1965 of the Principal Sub Court, Ernakulam (O.S. No. 47 of 1961 of the Sub Court, Cochin) (Raphael). The owner of the bus, held vicariously liable by the Court below, has come up in appeal challenging the decree, by raising contentions, frivolous and serious, in a desparate effort, may be, to escape all liability under the Act. The recklessness of the driving is matched only by the recklessness of his pleas about culpability. For instance, in his written statement, the mishap is blamed on the bad condition of the road and in the appeal memorandum an audacious but confessional contention of volenti non fit injuria is seen raised. The dangerous and treacherous state of Vypeen roads, it is pleaded, almost induces accidents. If that be so and perhaps it is Government is lucky that few people are conscious of their right to claim damages from it where the injury is reasonably occasioned by its misfeasance. However, such lamentable neglect of the maintainance of the highway must make a prudent motorist, driving in broad day light on a familiar route, more circumspect and it can never be an excuse for releasing him from legal duty to take care. The greater the danger, the greater the care, should be the guideline of the motorist. In this case, the evidence is clear, and the circumstances speak for themselves, that the 'fifth act' of the tragic drama which took the toll of three lives was brought about by the gross negligence of the driver. The defendant has taken up a ground in appeal that the plaintiffs should be non -suited on the principle of volenti non fit injuria. Scienti and therefore volenti may, perhaps, be the basis of the argument. In other words, the plea of the owner is that the reckless driving of his buses is so chronic and notorious that any one who steps into them must be deemed knowingly and willingly to be walking into a death -trapl Now that the plea has been unhesitatingly abandoned by counsel who realised the implication, I can only remark 'Father, forgive them, for they know not what they do'. This preposterous plea of the operator is perhaps bottomed upon the painful phenomena frequently found in Kerala of bad roads, absence of effective cautionary signals and safety measures, frequent and callous violation of traffic regulations and failure of concerned authorities to take prophylactic action against recurrence, at least after major road tragedies, thanks to the anaesthetised attitude of the public and government to road safety. But I have no doubt that the negligence of the defendant's driver is the causa causans of the accident under consideration. In fairness to counsel for the appellant, it must be said that, at the time of arguments, he did but feebly challenge his client's liability. However, he rightly stressed his case that the quantum of compensation award -able under the Act was far less than the excessive award made by the trial Court and on this part of the case we found consideraable force in his submission.

(3.) WE are, therefore, concerned only with assessing the amount of damages awardable to such of the plaintiffs as come within die scope of Section 1 -A of the Act, measured by the loss occasioned to them by the death of the one on whom they depended, although a claim under Section 2 of the Act, available to the legal representatives by way of loss caused to the estate of the deceased, has not been put forward, by a serious omission in the pleading. Facts material to issue under Section 1 -A are set out below: