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N.S. Jayanandan Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberA.S. No. 125 of 1977
Judge
Reported inAIR1983Ker46
ActsMotor Vehicles Act, 1939 - Sections 110B; Code of Civil Procedure (CPC) , 1908 - Sections 80; Evidence Act, 1872 - Sections 115
AppellantN.S. Jayanandan
RespondentState of Kerala and ors.
Appellant Advocate K. Sudhakaran and; P. Gopalakrishnan Nair, Advs.
Respondent AdvocateAddl. Adv. General
DispositionAppeal allowed
Cases ReferredBhagchand Degdusa Gujrathi v. Secy
Excerpt:
.....have taken better care to see that his vehicle does not collide with the vehicles coming along the main road, especially from his right side, 5. the lower court has found that the plaintiff has not proved that the collision between his motor cycle and the police jeep was as a result of rash and negligent driving by the 4th defendant. on a careful consideration of the evidence in the case, we are satisfied that the 4th defendant was negligent and the accident took place as a result of the negligence of the 4th defendant in driving the police jeep klv 3065. 6. the court below has held that the suit is defective for want of a notice to the 4th defendant under section 80, c. ' 7. it is well settled that a notice under section 80, c. ' these passages clearly show that the liability of the..........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.....
Judgment:

Balakrishna Menon, J.

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.

4. The principal question for consideration is as to whether the plaintiff has proved that the accident was due to the negligence on the part of the 4th defendant in driving the vehicle KLV 3065. There is no dispute that the plaintiff was riding his motor cycle along the main road from north to south and the 4th defendant driving the police jeep along the side road on the east had entered the main road at the road junction when the accident took place in Halsbury's Laws of England, Fourth Edition, Vol. 34, it is stated at page 40 para 48 thus:

'48. Cross Roads. There is an obligation to take special care at cross roads. The driver of a vehicle which approaches a major road from a side road ought to give way to traffic on the major road, but the driver of a vehicle on the major road is not absolved from the duty of taking care to avoid collision with a vehicle emerging from a side road. Where there is a collision at cross roads of equal status, there is a guiding rule that the vehicle which has the other on its right hand side must give way.'

The law in India is not different from what is stated by Halsbury at the passage quoted above. The plaintiff was coming from north to south along the main road. The collision took place at the time when the 4th defendant emerging from a side road on the east was crossing the main road. The motor cycle of the plaintiff was on the right side of the police jeep at the time when the collision took place. From the passage quoted above, it is clear that it is the duty of the 4th defendant driving the police jeep to give way to the motor cycle coming along the main road on its right side. The cross road in the present case are not of equal status. The 4th defendant should have taken better care to see that his vehicle does not collide with the vehicles coming along the main road, especially from his right side,

5. The lower Court has found that the plaintiff has not proved that the collision between his motor cycle and the police jeep was as a result of rash and negligent driving by the 4th defendant. The finding is based on certain assumptions which do not find support in the evidence adduced in the case. in para 5 of its judgment the Court below has observed that 'according to both sides the traffic umbrella was not on the main road but to its west.' There is no admission by the plaintiff that the so-called traffic umbrella is to the west of the main road. The 4th defendant examined as D. W. 4 had stated that the traffic umbrella is on tin western side of the main road and the plaintiff examined as P. W. 4 had stated that the traffic umbrella is in front of the house called 'Xanadu. Neither of these statements can be understood to mean that the traffic umbrella is not on the main road itself. There' is no other evidence to locate the exact position of the traffic umbrella. Apparently the traffic umbrella is in the main road itself a little towards the west from the centre of the road. Ext. B-5 mahazar prepared by D. W. 3, the Sub inspector of Police, shows that the traffic umbrella is 110 cm. north-west of the place of accident. This would show that the collision took place at a point more than one metre east of the traffic umbrella.

The Court below has observed, on the assumption, that the traffic umbrella is not on. the main road but farther west, that the collision was at a point when D. W. 4 had crossed the middle of the road and had almost reached the traffic umbrella. It is also on this assumption that the lower Court has found that the plaintiff was riding his motor cycle along the wrong side of the road. The Court below relies on the evidence of the plaintiff as P. W. 4 that the road at the junction has a width of 50 feet and that he wag travelling at a distance of 15 feet from the traffic umbrella. Locating the traffic umbrella outside the main road on its west, the Court below has come to the conclusion that the plaintiff was riding his motor cycle along the wrong side on the western half of the main road. As earlier stated, this conclusion is wrong for the reason there is no evidence as to the exact location of the traffic umbrella. On a reading of the evidence of P. W. 4 and D. W. 4, it would appear that the location of the traffic umbrella is on the main road itself but a little away from its mid-point towards the west, P. W. 4 had stated that the impact of the collision was on the right side of the police jeep.

On the assumption that the police jeep had already crossed the middle point of the road and had reached its western half, the Court below has held that the collision was at a point on the wrong side of P. W. 4. This assumption is not based on any evidence in the case. From the fact that the plaintiff and P. W. 5 were thrown out from the vehicle they were riding and sustained serious injuries, the Court below has assumed that the plaintiff was riding his motor cycle at a high speed, and hence he could not avoid the accident by swerving his vehicle towards the east or applying brake to stop the vehicle. Riding his vehicle along the main road the plaintiff is entitled to maintain a reasonable speed and the fact that himself and his companion rider were thrown out of the vehicle and had sustained serious injuries is not a ground to hold that the plaintiff was riding the motor cycle in a rash and negligent manner. The plaintiff, examined as P. W. 4, has deposed that the accident took place immediately after he had passed the traffic umbrella. This is a clear indication that the traffic umbrella is on the main road itself. The collision took place on the eastern side of the traffic umbrella. The road at the point, according to P. W. 4, has a width of 50 feet. Ext. B-5 mahazar prepared by D. W. 3 shows that the road junction where the accident took place has a width o 23 metres.

The main road along which the plaintiff was riding his motor cycle is a wide road at the point where the accident took place. He was on the eastern side of the traffic umbrella which is his proper side and the accident took place when D. W. 4 driving the police jeep emerged from a side road and was crossing the main road. Both P. Ws. 5 and 6 have deposed that D. W. 4 did not stop the police jeep while entering the main road and had been driving the vehicle fast. The 4th defendant examined as D. W. 4 has stated that he had stopped the vehicle before entering the main road but did not look to his right or left while crossing the main road. His statement that he had reached the traffic umbrella is not true as can be seen from Ext. B-5. The correctness of the statements contained in Ext. B-5 was not disputed by either side. P. W. 4 admits that at the point where he was crossing the main road, he could see vehicles coming from a distance of 200 feet from the north and 500 feet from the south. He has not cared to look-to his right when crossing the main road. D. W. 4 coming from a side road and attempting to cross the main road had an obligation to take special care to see that his vehicle does not collide with vehicles coming along the main road. It is also his duty to give way to the vehicles on his right side coming along the main road. On a careful consideration of the evidence in the case, we are satisfied that the 4th defendant was negligent and the accident took place as a result of the negligence of the 4th defendant in driving the police jeep KLV 3065.

6. The Court below has held that the suit is defective for want of a notice to the 4th defendant under Section 80, C. P. C. Notices under Section 80, C. P. C. had been issued to defendants 1 to 3. The 4th defendant did not file a written statement and remained ex parte. He was however examined as D. W. 4 on behalf of the defendants. The purpose of a notice under Section 80, C. P. C. is stated thus in the decision of the Supreme Court reported in State of Punjab v. Geeta Iron and Brass Works (AIR 1978 SG 1608) (para 4):

'A statutory notice of the proposed action under Section 80, C. P. C. is intended to alert the State to negotiate a just settlement or at least have the courtesy to tell the potential outsider why the claim is being resisted. Now Section 80 has become a ritual because the administration is often unresponsive and hardly lives up to the Parliament's expectation in continuing Section 80 in the Code despite the Central Law Commission's recommendations for its deletion. An opportunity for setting the dispute through arbitration was thrown away by sheer inaction. A litigative policy for the State involves settlement of governmental dispute with citizens in a sense of conciliation rather than in a fighting mood indeed, it should be a directive on the part of the State to empower its law officer to take steps to compose disputes rather than continue them in Court. We are constrained to make these observations because much of the litigation in which Governments are involved adds to the case load accumulation in Courts for which there is public criticism. We hope that a more responsive spirit will be brought to bear upon governmental litigation so as to avoid waste of public money and promote expeditious work in Courts of cases which deserve to be attended to.'

7. It is well settled that a notice under Section 80, C. P. C. is for the benefit of the State or the public officer concerned and the requirement of the notice can be waived by the person entitled to the notice in the present case, the 4th defendant has chosen to remain ex parte and has not even filed a written statement in the suit. The 4th defendant, should, therefore, be held to have waived the requirement of a notice to him under Section 80, C. P. C. The 4th defendant being an employee of the 1st defendant the State of Kerala, and the accident having taken place due to the negligence of the 4th defendant in the course of his employment, the 1st defendant is vicariously liable in damages to the plaintiff in the decision reported in Northern India Transporters insurance Go. v. Smt. Amara Wati (AIR 1966 Punj 288) (FB), it is stated thus at para 9 page 292:

'(9) Mr. Tirath Singh then say that the driver of the bus was not made a party to the proceedings and there was therefore, some illegality in the trial. There is no point in this submission, for it is not necessary for a claimant to implead every person guilty of a tort so long as the party against whom the claim is pressed, is joined in the claim and that party of course is the transport company. The mere circumstance, that the transport company may have some claim against the driver, is of no consequence and really of no concern to the claimants.'

In the decision reported in premraj Gobindram v. Promode Kumar Dey, (AIR 1964 Assam 85) it is stated thus at pages 88 and 89 (Paras 13 and 14):

'(13). Salmond on Torts', Eleventh Edition Section 25 says as follows:--

'Where the same damage is caused to a person by two or more wrongdoers those wrongdoers may be either joint or independent tortfeasorn. Persons are to be deemed joint 'ortfeasors within the meaning of this rule whenever they are responsible for the same tort -- that is to say, whenever the law for any reason imputes the commission of the same wrongful act to two or mote persons at once. This happens in at least three classes of cases -- namely, agency, vicarious liability, and common action, i.e., where a tort is committed in the course on a common action, a 'joint act done in pursuance of a concerted purpose'.

XXXJoint wrongdoers are jointly and severally responsible for the whole damage. That is to say, the person injured may sue any one of them separately for the full amount of the loss; or he may sue all of them jointly in the same action, and even in this latter case the judgment so obtained against all of them may be executed in full against any one of them.'

At another place in Section 30 Salmond observed:

'A master is jointly and severally liable for any tort committed by his servant white acting in the course of his employment.' These passages clearly show that the liability of the master is joint and several with the servant. By operation of law the master is deemed to be responsible for the wrongful act done by the servant. His liability is his own, although for the action of the servant and not for his own act and thus if the liability is joint and several, we see no reason why joint tortfeasors cannot be sued alone and the non-joinder of the other joint tortfeasors will defeat the suit.

(14) The respondent relies upon the decision of Vanguard Fire and General insurance Co. Ltd. v. Sarla Devi, reported in AIR 1959 Punj 297 for this proposition. This case fully supports the contention of the respondent. It is urged by the counsel for the appellant that the point raised by him does not seem to have been considered in the judgment of that Court. Even apart from that decision with which we are in complete agreement, we see no principle on which the suit can be defeated on the ground that the driver is not impleaded as a party. If the master as a joint tortfeasor is jointly and severally liable for the damages, the suit cannot fail simply because the driver who is also liable, has not been impleaded as a party.'

The Court below has relied on a decision of the Punjab and Haryana High Court reported in Union of India v. Chhattar Singh (AIR 1973 Punj and Har 339). in that case the suit against the Union of India and a postal clerk (an employee of the Union of India) was found not maintainable for want of a notice under Section 80, C. P. C. to the postal clerk for whose negligence in the course of employment, the plaintiff had suffered damages. The entire suit was dismissed for want of notice to the postal clerk under Section 80, C. P. C. who was impleaded as the 2nd defendant in the suit. In para 9 of the judgment it is stated thus :

'9. Since I am of the view that the plaintiff himself had impleaded Karam Chand and on the allegations made in the plaint itself, he was a necessary party it was essential that before a suit could be brought against him a notice under Section 80, Code of Civil Procedure should have been issued to him as well. As pointed out by the Privy Council in Bhagchand Degdusa Gujrathi v. Secy, of State for India, AIR 1927 PC 116, if the suit had been a joint proceeding right from the start and it was begun and prosecuted as a joint one, the whole suit should fail, if notice under Section 80 had not been given to all the defendants. I would, therefore, hold that in the circumstances of this case, a notice under Section 80, Civil P. C., should have been given to defendant No. 2 as well, I further hold that the failure to give the said notice to him, would result in the dismissal of the entire suit.'

The decision of the Privy Council in AIR 1927 PC 176 referred to in the passage quoted above does not support the proposition that want of a notice under Section 80, C. P. C. to the Government servant concerned will defeat an action for damages against the Government for the tortious act of its servant. The master being vicariously liable in tort for the negligence of the servant, both the master and servant are jointly and severally liable in damages to the plaintiff. A suit against the master alone for damages for a tortious act of the servant is maintainable. The decision of the Privy Council in AIR 1927 PC 176 related to the validity of certain notifications issued by the Government for the imposition of certain levies on certain classes of persons. Demand notices were issued by the District Collector for recovery of amounts due under the notifications issued by the Government.

There was no notice to the Secretary of State under Section 80, C. P. C. and the suit was filed seeking relief of injunction against the Secretary of State and the District Collector even before the two months time under the notice issued to the Collector under Section 80, C. P. C. had expired. The main question decided by the Privy Council was one resolving a conflict of decisions among different High Courts in India in regard to the question as to whether a notice under Section 80, C. P. C. is a mandatory requirement to maintain a suit for injunction against the Government or its Officers! The Privy Council held that even in a suit for injunction a notice under Section 80, C. P. C. is necessary and the failure of such notice will defeat the suit. The suit in the case dealt with by the Privy Council was against the validity of certain notifications issued by the Government. The Collector had issued only consequential notices of demand. The Privy Council therefore held that the suit is defective for the failure of the plaintiff to issue a notice under Section 80, C. P. C. to the Secretary of State. It is in that context the Privy Council stated thus at page 185:

'An attempt was made to distinguish between the effect of Section 80 in the case of the Secretary of State and in the case of the Collector, and to argue that, even if it defeated the action as against the first named defendant, it would fail to protect the second. Their Lordships cannot accept this. Not only has the suit been throughout a joint proceeding against the officials concerned, for the purpose of getting a joint declaration that the Government Notification was bad as the foundation of everything subsequently done, but without the presence of the Secretary of State before the Court, the Notification could not be assailed, and, if it stands as valid, the Collector's own action could not be successfully impugned.'

There the foundation of the Collector's action was the notification issued by the Government and on failure of the suit against the Secretary of State for want of notice under Section 80, C. P. C., the suit should necessarily fail against the Collector also. This decision is not an authority for the proposition that for the failure to issue a notice under Section 80, C. P. C. to the Government Servant for whose negligence the Government is vicariously liable in damages to the plaintiff, the whole suit should fail. The decision of the Punjab and Haryana High Court in AIR 1973 Punj & Har 339 cannot, therefore be accepted as correctly decided; The suit is not in any way defective for the failure of the plaintiff to issue a notice under Section 80, C P. C. to the 4th defendant; The 4th defendant by his conduct has waived' the requirement of such a notice to him, am)-the suit is maintainable against all the defendants.

The 4th defendant on whose negligence, the plaintiff had sustained injuries and suffered damage, is an employee of the 1st defendant. Defendants 1 and 4 should, therefore, be held liable in damages to the plaintiff. No relief can be granted against defendants 2 and 3, the inspector General of Police and the State insurance Officer. The result is we set aside the judgment and decree of the Court below, and decree the suit for recovery of Rs. 20,000/- from defendants 1 to 4 with interest at 6% per annum from the date of suit. The appeal is allowed with costs here and in the Court below.


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