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Kannu Rowther Vs. Kerala State Road Transport Corporation - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberA.S. No. 456 of 1971
Judge
Reported inAIR1975Ker109
ActsMotor Vehicles Act, 1939 - Sections 110B
AppellantKannu Rowther
RespondentKerala State Road Transport Corporation
Appellant Advocate Panickar and; Poti, Advs.
Respondent Advocate T.C.N. Menon, Adv.
DispositionAppeal partly allowed
Cases ReferredBenham v. Gambling.
Excerpt:
.....conductor could explain in what manner plaintiff knocked down - second defendant did not exercise reasonable care and caution when bus reversed and acted rashly and negligently resulting in accident causing personal injuries to plaintiff - plaintiff entitled to get general and special damages. - - 3. the trial court held that the plaintiff has failed to prove that the accident occurred due to the negligent driving of the second defendant and therefore dismissed the suit. the buses reaching changannacherry bus station yard enter the bus station through the southern side of a well at the eastern portion, of the station yard. the buses come round to the northern side of the well and are being reversed for stopping near the waiting shed which are on the western side of the station..........of the second respondent, employee-driver of the first respondent, in reversing the bus without reasonable care and caution and that that accident had resulted in serious injuries to him, he being deprived permanently of his three toes, a suit for recovery of damages caused was filed by the appellant against the respondents. it was alleged in the plaint that the plaintiff was still 'suffering pain and agony at the time of the institution of suit. the damages claimed was rs. 20,000/- as general damages and rs. 3,500/- as special damages. the plaint allegation was that the plaintiff had to incur rs. 3,500/- as expenses for his treatment. 2. the respondents who filed separata written statements denied that the bus was being rashly or negligently reversed. the bus was being reversed with.....
Judgment:

Chandrasekhara Menon, J.

1. On August 11, 1967, the appellant who was then 73, was waiting at the state transport bus stand, Changannacherry at abut 9,45 a. m. A bus K. L. T. 4606 belonging to the first respondent-corporation with the second respondent at the wheels hit the plaintiff and knocked him down, when the bus was being reversed. The left back wheel crushed the tight toes of the plaintiff. The plaintiff had to be treated in the medical college hospital, Kottayam and later in the John Memorial Hospital, Changannacherry. The bigger three toes of his right foot had to be amputated. Alleging that the accident had occurred due to the rash and negligent act of the second respondent, employee-driver of the first respondent, in reversing the bus without reasonable care and caution and that that accident had resulted in serious injuries to him, he being deprived permanently of his three toes, a suit for recovery of damages caused was filed by the appellant against the respondents. It was alleged in the plaint that the plaintiff was still 'suffering pain and agony at the time of the institution of suit. The damages claimed was Rs. 20,000/- as general damages and Rs. 3,500/- as special damages. The plaint allegation was that the plaintiff had to incur Rs. 3,500/- as expenses for his treatment.

2. The respondents who filed separata written statements denied that the bus was being rashly or negligently reversed. The bus was being reversed with due care and caution, slowly sounding horn. The conductor was standing at the foot board giving signal for reversing. The first respondent alleged that the accident happened because the plaintiff in his hurry to board the bus, rushed to the entrance of the bus through the back side of the vehicle and sustained the injuries due to his own negligence. The second respondent, driver, also imputed carelessness and negligence to the plaintiff. He denied any negligence on his part. Both the respondent-defendants refuted the plaintiff's claim for damages. The quantum of damages claimed was also questioned by them.

3. The trial court held that the plaintiff has failed to prove that the accident occurred due to the negligent driving of the second defendant and therefore dismissed the suit. Though the court had dismissed the suit, the court had considered what could have been awarded as damages to plaintiff if lie had 'succeeded in the suit, The court had found that the plaintiff had sustained personal injuries and suffered permanent deprivation of three toes as a result of the unfortunate accident. The court had also found that the aggregate amount that can be allowed as special damages in the case is only Rs. 863-25 ps. The court also held that in case the plaintiff had succeeded he would have been entitled, on a reasonable and mode-rate assessment, to Rs. 5.000/- as general damages besides the special damages mentioned earlier. However in view of the finding on the main issue relating to the cause of accident, the plaintiff was held, not entitled to claim any amount from the defendants 'and the suit was dismissed, but without costs in the circumstances of the case, The plaintiff has consequently taken up the matter in appeal to this court.

4. The question (apparently simple in posing the issue but bristling with difficultly in deciding the same) that arises for consideration by this court, is whether the second defendant had driven rashly and negligently while reversing the bus. As to how the accident happened, we might first look into the respective case of the parties as revealed from their pleadings. Plaintiff states in para 2 of the plaint:

'On 11-8-1967 the second defendant was driving the above said bus (K. L. T. 4606) via and in Changannacherry, At about 9.45 a, in, on the said day the bus was in the premises of the Kerala State Transport bus stand, Changannacherry, in Vazhappally village. The plaintiff was also at the premises at that time, having gone there to board a bus to Kottayam. At the same time and place the second defendant as driver reversed the bus from east to west rashly, negligently, without due proper and reasonable care and without sounding the horn, by the back side of the bus hitting him and a back wheel about 6 feet in front of the back side crushed his right toes.'

The defendant's version as to how the incident happened is given by the first defendant in para 2 of his written statement.

'The buses reaching Changannacherry bus station yard enter the bus station through the southern side of a well at the eastern portion, of the station yard. The buses come round to the northern side of the well and are being reversed for stopping near the waiting shed which are on the western side of the station yard. On this particular day of accident also, the bus was being reversed as usual very slowly sounding horn after it entered the bus station yard. The conductor was standing at the foot board giving the signal for reversing and the 2nd defendant was reversing the bus carefully looking at the right side of the bus. The plaintiff in his hurry to board the bus, rushed to the entrance of the bus through the back side of the bus and sustained the injuries due to his own negligence. The passengers are not expected to rush through the station yard before the buses are parked at the bus station and while the buses are being reversed for parking. The 2nd defendant or the conductor never expected that plaintiff will be rushing to board the bus before it was being parked and both of them did not notice him since he approached unaware through the back of the bus. The plaintiff in his hurry to board the bus stopped and full down and thus the unavoidable accident took place.'

5. From the evidence in the case the following facts have emerged-- (1) the place where the accident took place is not one which is out of bounds for passengers; (2) there were other persons also standing who were able to remove themselves from the way of the vehicle which was being reversed (D. W. 1 the conductor of the bus says: '(Malayalam omitted).' Page 2 of chief-examination; (3) the defendants have not even attempted to prove that the accident happened because the plaintiff in his hurry to board the bus rushed to the entrance of the bus through the back side of the vehicle; and (4) it is not a case where immediately the plaintiff was knocked down the bus stopped because the left back wheel of the vehicle had crushed the plaintiff's toes and the distance from the- back wheel to the back side is 6 feet (see mahazar Ex. P-3),

6. P. Ws. 2 and 3 are the plaintiff's witnesses who speak about the accident and their version of the incident is more or less in conformity with the plaint allegations. D. W. 1, the' conductor of the bus in his evidence says about the occurrence:

[Original in Provincial Language omitted].

7. Can the court find negligence on the defendants in the light of this evidence,. No doubt the onus of proof that the defendant has been careless falls upon the plaintiff. Carelessness is to be proved on a preponderance of probabilities. However in a limited number of cases the facts of the accident may of themselves constitute evidence of negligence and the doctrine of res ipsa loquitur will apply in those cases. The Latin phrase 'Res ipsa loquitur' means the thing itself speaks, The classic statement of the circumstances in which the doctrine will apply is by Erie, C, J. in Scot v. London and St. Katherine Docks, (1865) 3 H & C 596 at 601 :

'There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care,'

8. When a bus is being reversed in a place -- a bus stand -- where there are found to be a number of persons waiting for the buses, the driver and conductor of the bus are expected to take extreme care and caution. The bus being under the sole care and management of these person the accident would not have occurred in the ordinary course but for their negligence. In the instant case the defendants though they had a case of contributory negligence on the part of the plaintiff in their pleadings, have not substantiated the same in their evidence.

9. Where a person had a right to cross a railway siding and was found crushed between the buffers of shunted trucks without any evidence of why he was there or how the accident occurred, the House of Lords held that there was a duty of care owed by the railway in their shunting operations, that there was no evidence that the man shunting saw the deceased or warned him, and that, therefore, there was some evidence of negligence on which the Jury could give a verdict against the company. Jones v. G. W. Ry., ((1930) 47 TLR 39).

10. In the case before us neither the driver nor the conductor of bus could explain in what manner the plaintiff was knocked down. That itself would indicate lack of reasonable care on their part.

11. In Shyam Sunder v. State of Rajasthan, (AIR 1974 SC 890) Mathew, J. said at page 892 :

'The maxim res ipsa loquitur is resorted to when an accident is shown to have occurred and the cause of the accident is primarily within the knowledge of the defendant. The mere fact that the cause of the accident is unknown does not prevent the plaintiff from recovering damages, if the proper inference to be drawn from the circumstances which are known is that it was caused by the negligence of the defendant. The fact of the accident may, sometimes, constitute evidence of negligence and then the maxim res ipsa loquitur applies,'

Further down the learned Judge referring to Barkway v. South Wales Transport, ((1950) 1 All ER 392) observed:

'The mere happening of the accident may be more consistent with the negligence on the part of the defendant than with other causes. The maxim is based on commonsense and Its purpose is to do justice when the facts bearing on causation and on the can exercised by defendant are at the outset unknown to the plaintiff and are or Ought to be within the knowledge of the defendant.'

12. We might refer at this stage to a decision referred by the learned Additional Advocate General appearing for the respondents -- Hartderson v. Henry E. Jenkins, ((1969) 3 WLR 732). The relevant passage that was relied on is the following from Lord Pearson's opinion:

'My Lords, in my opinion, the decision in this appeal turns on what is sometimes called 'the evidential burden of proof', which is to be distinguished from the formal (or legal or technical) burden of proof. Passages which bear upon this distinction will be found in Esso Petroleum Co, Ltd. v. Southport Corporation, (1956) AC 218, 230-1 per Devlin, J., and at pp. 242-3 per Lord Radcliff, and in (1950) 1 All ER 392, 394-5 per Lord Porter and at p. 400 per Lord Normand. For the purposes of the present Case the distinction can be simply stated in this way. In an action for negligence the plaintiff must allege, and has the burden of proving, that the accident was caused by negligence on the part of the defendants. That is the issue throughout the trial, and in giving judgment at the end of the trial the Judge has to decide whether he is satisfied on a balance of probabilities that the accident was caused by negligence on the part of the defendants, and if he is not so satisfied the plaintiff's action fails. The format burden of proof does not shift. But if in the course of the trial there is proved a set of facts which raises a prima facie inference that the accident Was Caused by negligence on the part of the defendants, the issue will be decided in the plaintiff's favour unless the defendants by their evidence provide some answer which is adequate to displace the prima facie inference, in this situation there is said to be an evidential burden of proof resting on the defendants. I have some doubts whether it is strictly correct to use the expression 'burden of proof' with this meaning, as there is a risk of it being confused with the formal burden of proof, but it is a familiar and convenient usage. With this approach to the case, I must consider the pleadings.'

13. The proved set of facts here, namely that the accident occurred when the bus was being reversed in a place where there were a number of persons, that neither the conductor nor the driver is able to give an explanation as to how the bus knocked down the plaintiff and the further fact that such an accident would not in the normal course have happened if reasonable care and caution had been exercised by the driver and the conductor, should induce us to decide the issue in plaintiff's favour.

14. As pointed out in Woods v. Duncan and other connected cases (1946 AC 401), by the House of Lords, the principle of res ipsa loquitur only shifts the onus of proof, in that a prima facie case is- assumed to be made out, throwing on the defendant the task of proving that he was not negligent, this does not mean that he must prove how and why the accident happened; it insufficient if he satisfies the court that he personally was not negligent. But in this case it will not be sufficient to depend on the interested testimony of D. Ws. 1 and 2 for coming to the conclusion that they were not negligent. Therefore we hold that second defendant had not exercised reasonable care and caution when the bus was being reversed and he had acted rashly and negligently resulting in the accident causing personal injuries to the plaintiff.

15. Then the question is as to what are the damages to which the plaintiff is entitled. The learned Additional Advocate General appearing for the first respondent-Corporation did not rightly question the fixation of special damages by the lower court at Rs. 863.25 ps. However he strongly contended that fixation of the general damages at Rs. 5.000/- by the lower court is out of all proportion. The items under which the award of general damages in such cases are to be considered are these: (1) Pain and suffering (2) Loss of amenities of life and (3) shortened expectation of life. In respect of pain and suffering we cannot look to a standard giving a clear guidance on amounts to be awarded. It will vary with the particular injury and the particular circumstances. However as Salmon, L. J. said in Fletcher v. Auto Car and Transporters, (1968) 2 QB 322 (CA)) the plaintiff's economic and social position is irrelevant in the matter. The normal compensation for the loss of an arm as such is the same for a rich man as it is for a poor man. The plaintiff has lost three toes. We have to take into account the pain that was caused to him by medical treatment or surgical operation rendered necessary by the injury, fright at the time of the injury and fright reaction, fear of future incapacity and the sadness and embarrassment caused by the operation (see para 1140 Page 771--McGregor on Damages 13th Edition). In respect of damages for loss of amenities of life this head of damages concentrates on the entailment (sic) (curtailment?) of the plaintiff's enjoyment of life not by the positive unpleasantness of pain and suffering but in a more negative way by his inability to pursue the activities he pursued beforehand. As McGregor points out here also as with pain and suffering it is virtually impossible to get a clear guidance on amounts, since awards vary with the particular injury, the particular circumstances and the particular judges. Here also it will not be proper that the social and economic position of the plaintiff should affect the award (see McGregor, page 1145).

16. The principles, on which an assessment for loss of Expectation of Life should be governed are fully laid down by Court Simon, L, C. in Benham v. Gambling. (1941 AC 157). The prime factor to be kept in mind is that what has to be valued is 'the prospect of a predominantly happy life' and what is to be fixed is a reasonable figure to be paid by way of damages for the loss of a measure of prospective happiness.' It is necessary for the court to be satisfied that the circumstances of the individual life were calculated to lead, on balance, to a positive measure of happiness of which the victim had been deprived by the defendants' negligence. If the character or habits of the individual were calculated to lead him to a future of unhappiness or despondency, that would be a circumstance for justifying a smaller award.

17. After due consideration of the principles stated above, we do not consider the amount fixed by the court below as general damages, Rs. 5,000/-, calls for any interference. Therefore, we hold that the plaintiff would be entitled to get as damages from the respondents Rs. 5,000/- towards general damages and Rs. 863-25 as special damages --thus altogether Rs. 5863-25.

18. In the result, the appeal is allowed to the extent indicated above, namely, the plaintiff will be entitled to get damages to the extent of Rs. 5863-25 from the respondents-defendants. The plaintiff will get proportionate costs in both the courts from the defendants. The appeal is thus allowed to the extent indicated above and the judgment and decree of the court below set aside.


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