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Ramathal Vs. Kerala State Road Transport Corporation and anr. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtKerala High Court
Decided On
Judge
Reported in2(1986)ACC309
AppellantRamathal
RespondentKerala State Road Transport Corporation and anr.
Cases Referred(See London Passenger Transport Board v. Upson
Excerpt:
.....defendant driving at a high speed, and then knocking down the children at about the middle of the road while they were crossing to the other side. if it is dark or if the visibility is otherwise poor, the driver has to be extra careful. the idea is clearly expressed in charlesworth and percy on negligence, seventh edition, page 10-134, as follows: the driver or rider of the overtaking vehicle, before attempting to overtake, should see that it is safe to do so, and should be specially careful at dusk or in fog or mist, when it is more difficult to judge speed and distance. and the courts have necessarily to put down this social evil, by strong and stern approaches and attitudes in dealing with traffic offences and civil claims. such a callous attitude would not fit in with the role and..........a clear allegation about the 2nd defendant driving the vehicle in violation of the motor vehicles rules. rule 56, thereof, had been specifically referred to in the court below. that rule reads:56 (2). the driver of a public service vehicle while on duty...(i) shall not, when bringing his vehicle to rest for the purpose of picking up or setting down any passenger at or near the place where another public service vehicle is at rest for the same purpose, drive the vehicle so as to endanger, inconvenience or interfere with the driver or the conductor of the other vehicle or any person mounting or preparing to mount thereon or alighting therefrom, and shall bring his vehicle to rest behind the other vehicle and on the left hand side of the road or place. 8. the rules framed under the.....
Judgment:

K. Sukumaran, J.

1. This appeal unfolds the tragedy of a helpless widow who lost her two sons, and also her suit for damages. She had come from Tamil Nadu and eking out her livelihood by doing odd jobs, and residing near Edappally in the house of PW 5. The tragic incident happened at eight in the night near an important junction in the National Highway wherefrom the road leading to Edappally Railway Station branches off. A bus was already parked on the eastern side of the road for facilitating the passengers to alight and mount the bus. Fast passenger bus, KLV 3325, belonging to the 1st defendant K.S.R.T.C. and driven by the 2nd defendant, was proceeding from the northern side to Ernakulam. It overtook the stationary bus at the junction. The two boys of the plaintiff were crossing the road on their way home. It was then that they were run over by the bus. One died on the spot and the other on the way to hospital. The request for compensation, fixed in a modest sum of Rs. 20,000/-, was responded to by the defendants-by a cruel indifference. This led to the suit.

2. By an extremely unsatisfactory judgment, the suit was disposed of by the court below. It commenced the judgment by sympathising with the plaintiff and concluded it by dismissing the suit. At one place in its judgment, the court below stated:.in my view the children were hit by the bus due to a pure accident.

However, in a later portion of the judgment, it observed:.in my view the accident has occurred due to the negligence of the plaintiff's children.

There was a complaint that the 2nd defendant while driving the vehicle, callously violated Rule 56 of the Kerala Motor Vehicles Rules, 1961. The learned Judge, however, felt that:

these guidelines are intended for drivers and they are directed to observe the guidelines as far as possible.

(Emphasis supplied)

Decisions bearing on the question of negligence and the legal liability of those who drive rashly were referred to. The court below satisfied itself by disposing of the arguments and the reference to the judicial decisions by stating:

In my opinion the decisions cited by the learned Counsel for the plaintiff will not apply to the facts of this case.

On the appreciation of evidence, again that court was unjustifiably cryptic. It stated:

The evidence of alleged eye-witnesses is not worth the paper in which it is written.

In short, there has not been a proper advertance to, assessment of, and discussion on the evidence and legal principles applicable to the case. We are clear that the court below sadly failed in discharging its duty as a court of first instance. Only recently we had to reverse an equally unsatisfactory judgment of the same learned Judge in Chathu v. Narayanan Nair A.S. No. 42 of 1979, decided on 4-6-1985 (Kerala).

3. The trial court has a solemn, though onerous, duty to deal in sufficient detail with the pleadings and the evidence and apply the legal principles to the factual findings. A cursory and cryptic disposal of issues very vital to the parties, may, for that very reason, result in a miscarriage of justice. This has necessarily to be borne in mind by the subordinate courts.

4. Despite her manifold difficulties, the plaintiff had adduced adequate evidence to establish her case. PW 2 was standing on the western side of the road, and he spoke about the high speed with which the bus overtook the stationary bus parked on the eastern side. He saw the bus hitting the two boys. That too is the evidence of witnesses PWs 3 to 5. These witnesses are persons having intimate connection with the locality and opportunity to be present near the spot at the relevant time. They were sought to be discredited only by a vague suggestion that they were interested in helping the plaintiff. The suggestion is extremely fragile. We do not find any ground to discard their evidence about the rash and negligent driving of the 2nd defendant.

5. Having gone through the evidence in the case, we are fully satisfied that the negligence, on the part of the 2nd defendant has been clearly established. The incident was at an important junction in the periphery of a busy city with large flow of traffic, particularly after the end of the day, when workmen 'homeward plod their weary way', from far off places of work. There are many who have to go to the area lying on the western side of the National Highway, either to their homes around or to catch the buses connecting the hinterland areas. Pedestrian crossing has to be anticipated and necessary precautions scrupulously taken while any vehicle passes along such a junction. In Beliya v. M.P.S.R.T. Corporation, Bhopal 1977 ACJ 362 (MP), negligence was found against a driver who knocked down a boy of seven, crossing the road at a place where many persons were working and residing nearby, and when the road was not a solitary one where ordinarily pedestrian traffic was not expected. The facts of the present case are stronger to make out a case of negligence against the 2nd defendant.

6. The evidence clearly establishes the parking of a stationary bus at an important junction, the overtaking of that bus by the 2nd defendant driving at a high speed, and then knocking down the children at about the middle of the road while they were crossing to the other side. The facts established are such that the principle of res ipsa loquitur could be rightly applied to them. We have discussed this aspect fairly elaborately in our judgment in Chathu v. Narayanan Nair A.S. No. 42 of 1979 decided on 4-6-1985 (Kerala). The incident itself is suggestive of negligence on the part of the 2nd defendant. The defendants have not succeeded in demolishing the presumption of negligence by cogent and convincing evidence. The interested testimony of DW 1 is utterly inadequate to dislodge the presumption available about the negligence on the part of the 2nd defendant, in precipitating the tragic incident.

7. Even in the plaint there was a clear allegation about the 2nd defendant driving the vehicle in violation of the Motor Vehicles Rules. Rule 56, thereof, had been specifically referred to in the court below. That rule reads:

56 (2). The driver of a public service vehicle while on duty...(i) Shall not, when bringing his vehicle to rest for the purpose of picking up or setting down any passenger at or near the place where another public service vehicle is at rest for the same purpose, drive the vehicle so as to endanger, inconvenience or interfere with the driver or the conductor of the other vehicle or any person mounting or preparing to mount thereon or alighting therefrom, and shall bring his vehicle to rest behind the other vehicle and on the left hand side of the road or place.

8. The rules framed under the enactment are not to be lightly ignored. When the authority vested with power in that behalf by a statute, promulgates a rule conceived in ensuring the safety of the travelling public, due weight and consideration have to be given to them. A violation of any such rule may, coupled with other circumstances, justify an inference of negligence on the violator of rule, unless satisfactory explanation in extenuation of the violation is forthcoming. Sandhawalia, CJ speaking for a Bench of the Punjab and Haryana High Court observed that a driver who violated Rule 9 of the Tenth Schedule of the Motor Vehicles Act was guilty of a 'statutory negligence'. Vide Oriental Fire & General Ins. Co. Ltd. v. Manjit Kaur 1980 ACJ 453 (P&H;) at 457. Referring to regulation 3 of the Pedestrian Crossing Places (Traffic Regulations, 1941, Asquith LJ observed in Upson v. London Passenger Transport Board (1947) KB 930 at 945 that the common law duty is enhanced by the duty contained in the regulations. When the matter was taken up to the House of Lords, Lord Uthwatt stated:

First it is clear that the duty arising under regulation 3 was imposed with a view to protecting persons on the crossings therein referred to from the peril of approaching vehicles. The female respondent can rest her claim therefore merely on a breach of that duty....

and reiterated later:

The necessity of complying with the regulation is a matter which at all points of time the driver must bear in mind.

(See London Passenger Transport Board v. Upson 1949 AC 155 at 172-3)

That regulation 4 of the Pedestrian Crossings Regulations, 1954, imposed an absolute duty on the motorist. [See the view taken in Hughes v. Hall (1960) 2 All ER 504]. The court below erred grievously when it thought that the rules promulgated were only guidelines which need be observed 'as far as possible'.

9. The court below stated that the overtaking bus had its lights on, that the driver could not be in a position to see those crossing the roads suddenly, and that it being night time nobody could anticipate the accident. None of these assumptions are tenable or valid. Overtaking of a bus, has to be done with extreme caution. A driver can overtake another vehicle only when he gets a clear view of the road and of the passengers beyond. If it is dark or if the visibility is otherwise poor, the driver has to be extra careful. The man at the wheel has to peel his eyes and prick his ears, at every move. The idea is clearly expressed in Charlesworth and Percy on Negligence, Seventh Edition, page 10-134, as follows:

The driver or rider of the overtaking vehicle, before attempting to overtake, should see that it is safe to do so, and should be specially careful at dusk or in fog or mist, when it is more difficult to judge speed and distance. A driver should not overtake at or when coming to a corner or bend, a road junction, a pedestrian crossing, the brow of a hill, a level crossing....

10. The onerous duty on the part of the driver has been emphasised by Lord Porter when he stated:

A driver must, of course, keep a proper lookout even for negligent pedestrians....

and more emphatically by Lord du Parcq when he stated:

Even apart from the duty imposed on him by the regulations, he was therefore bound to take precautions against the possibility that some person was concealed from his view by the stationary cab and might suddenly emerge from its protection.

Lord Uthwatt pointed out the common experience that the many users of the road do not behave with reasonable care and caution:

A driver is not, of course, bound to anticipate folly in all its forms, but, he is not,...entitled to put out of consideration the teachings of experience as to the form those follies commonly take.

(See London Passenger Transport Board v. Upson 1949 AC 155).

11. The menacing sight of the reckless overtaking is too common and too notorious not to be taken note of by courts of law. And the courts have necessarily to put down this social evil, by strong and stern approaches and attitudes in dealing with traffic offences and civil claims. Those who dare to violate the rules, or throw to the winds elementary precautions while driving the vehicles, imperilling valuable human lives in that process will do so at their own peril.

12. In the light of the above discussion, we hold that the facts and circumstances of the case and the evidence available would fully justify a finding of negligence as against the 2nd defendant. It will inevitably affect the 1st defendant who is vicariously responsible for the negligence of the driver employed by it.

13. The two sons of the plaintiff were only 16 and 5. They were able bodied boys. The compensation, Rs. 20,000/- in the aggregate, claimed by the plaintiff is, as noted earlier, only a very moderate sum. The plaintiff is therefore entitled to a decree to the above sum together with interest as prayed for in the plaint and costs.

14. Before parting with the case, we must express our concern at the manner in which the 1st respondent-Kerala State Road Transport Corporation--a respondent organisation discharging duties pertaining to an important public utility, and a State coming within the meaning of Article 12 of the Constitution--behaved in relation to the representations and demands made on behalf of a helpless widow. Paragraph 11 of the plaint refers to the petition she sent to the 1st defendant for which there was no response. To the lawyer's notice dated 10-9-1973, the 1st respondent replied directing the plaintiff to submit a claim in the prescribed form. Though that was forwarded on 30-10-1973, no action whatever was taken in that matter. A reminder was also sent, nearly nine months after the submission of the claim, on 27-7-1974. That too remained unresponded to. Such a callous attitude would not fit in with the role and status of a statutory corporation like the 1st respondent or any of the responsible officers and employees working in it. We would desire that those in charge of the administration would cause enquiries being made about the total indifference and inaction in a matter where a poor widow was knocking at its door repeatedly with a claim for compensation in a tragic situation where two of her sons met with an instantaneous death by the rash driving of the employee of the Corporation. We do hope that the 1st defendant Corporation will expiate its past default by a prompt payment of the decree amount, within two weeks, if possible. Counsel Mr. Neelakantan Nambudiri deserves appreciation for the professional services rendered by him, here and in the court below, to a helpless poor widow in distress.

15. In the result, we allow the appeal, set aside the decree of the court below, and decree the suit in terms indicated above. The appellant will have her costs herein and in the court below. The court fee payable shall be recovered by the State Government from defendants 1 and 2, and consequential adjustments made in the computation of costs.


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