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Judgment
Kochu Thommen, J.—The Plaintiff is the Appellant. She is the mother of R. Subramonian who died on 11.9.1973 as a result of an accident. The case of the Plaintiff is that while her son was travelling on the carrier of a bicycle along the road leading from the M.L.A. quarters to the Gas House Junction at Trivandrum at about 9 a.m. on 11.9.1973, a private bus KLV 6866, owned and operated by the first Defendant, the International Space Research Organisation, for carriage of its employees, and driven by the second Defendant, hit and ran over her son as a result of which he died at about 12 a.m. at the Medical College Hospital, Trivandrum.
The Plaintiff alleged that the accident occurred on account of the negligence of the Defendants. She stated that the second Defendant, while in the course of his employment, drove the bus rashly and negligently, as a result of which the vehicle hit her son and caused his death, and the second Defendant as well as his employer, the first Defendant, were fully responsible for all the consequences flowing from the accident and liable for damages to her. The second Defendant has remained ex parte. It has not been disputed by the first Defendant that if there was evidence to find that the second Defendant was negligent, and the accident took place as a result of such negligence, the first Defendant, as the employer, would be vicariously liable. However the first Defendant contended that there was no negligence at all on the part of the second Defendant and that the accident was caused by the negligence of the deceased. It relied on the testimony of the second Defendant who deposed as DW1. There was no other witness for the defence.
The court below, disbelieving the evidence of P Ws 1 to 5, accepted the defence version of the incident and held that the Plaintiff failed to prove that her son died as a result of the bus hitting him or running over him or that the second Defendant was rash or negligent in his driving.
Mr. Rasheed appearing for the Plaintiff-Appellant has taken us through the entire evidence. He contends that when the evidence is seen as a whole, the negligence on the part of the first Defendant cannot be in doubt. He further contends that the testimony of DW1 himself, particularly when seen in the light of what is spoken to by P Ws 4 and 5, would indicate that the case of the Plaintiff that the bus ran over the deceased owing to the rash and negligent driving of second Defendant has been amply proved. In any case, counsel contends that, the evidence on record speaks for itself and the maxim res ipsa loquitur places the burden on the Defendants to rebut by evidence the presumption that the accident arose by reason of their negligence.
Counsel for the first Defendant-Respondent Mr. Prabhakaran submits that the evidence was properly appreciated by the court below and the court rightly came to conclusion that the Plaintiff has failed to prove her case. Counsel points out that the evidence of DW1 shows that there was no negligence on his part and that the negligence, if any, was entirely on the part of the deceased. He says that the very fact that the cyclist behind whom the deceased was sitting did not sustain any injury and that the cycle which fell on the road was not in any manner damaged would indicate that death did not occur as a result of the bus hitting the cycle. He says that there is sufficient evidence to show that rubble had been stacked on the left hand side of the road, and the deceased having fallen down on that side of the road sustained injuries and died without the intervention of the bus. Counsel submits that the deceased had a week prior to the incident fallen off a bicycle and injured his knee and elbow. According to him, the earlier injuries contributed to the cause of his death.
Mr. Prabhakaran further refutes the contention of the Plaintiff that the deceased was earning Rs. 700/- per month at the time of the incident and that he was supporting his mother and her dependent minor children by giving them Rs. 600/- per month out of his earnings. Counsel submits that the claim is grossly exaggerated and cannot be accepted by the court.
We shall begin with the evidence of the second Defendant himself. Testifying as DW1 he makes certain crucial admissions. His evidence shows that neither the cyclist nor the deceased was in any manner negligent. The cycle was proceeding about 150 feet ahead of the bus. The cyclist heard the horn sounded by the bus. He turned to the left hand side of the road. The deceased was sitting on the carrier. The driver of the bus thought there was. sufficient space for the bus to go past the cycle and its passenger. On the right hand side of the road, trenches had been made for laying pipes. Pipes were stacked on that side of the road. The road was about IOV2 feet wide. The bus was about 7 V2 feet wide. Rubble had been stacked on the left hand side of the road. This means that, assuming the bus travelled precisely in the middle of the road, there was a mere foot and a half on either side of the road. Even an expert cyclist negotiating through that narrow space, with the bus overtaking him, would have lost his balance, especially if rubble had been stacked on that side of the road. Even to amount the cycle at that point of time, with the bus overtaking so close to the cycle, would have been extremely hazardous to both the cyclist and his companion. A careful and prudent driver in the position of the second Defendant would have immediately foreseen the danger of overtaking the cyclist at that point. With his experience as a driver, the second Defendant ought to have clearly foreseen the possibility or even the probability of the cyclist and his companion losing the balance and falling on the right hand side towards the bus during the overtaking and the grave danger of their being hit or run over by the bus. The second Defendant ought to have waited till the cyclist went past the trenches. That would have been prudent and reasonable. He was rash and negligent in not doing so.
The evidence of P Ws 4 and 5 would show that as the bus overtook the cycle, it hit the deceased or brushed him aside, and the rear wheel of the bus ran over his face. PW4 says that the deceased was hit by the bus. Nevertheless the bus did hot stop. People ahead on the road seeing the incident stopped the bus. The" wheel of the bus had already run over the face of the deceased who had fallen on the road. PW5 saw the cycle falling to the left hand side. The cyclist too fell on that side. Fortunately therefore neither the cyclist nor the cycle was hit by the bus. That accounts for the absence of injury to the cyclist or damage to the cycle. Unfortunately, however, the deceased who was sitting on the carrier fell on the right hand side towards the bus which brushed against him and hit or ran over his face.
The deceased was immediately taken to the General Hospital. Finding that his condition was very serious, he was referred to the Medical College Hospital where, as we stated earlier, he died at about 12 noon.
It is fanciful to suggest, as the defence does, that the deceased died because he fell down on the rubble. It is no less fanciful to suggest that the minor injuries sustained by him to his knee and elbow a week earlier by falling off a bicycle contributed to his death when he again fell off the bicycle on the fateful day. The deceased died in a few hours of the incident. The evidence of DW 1 is perfectly consistent with the evidence of P Ws 4 and 5 on the material aspect of the tragedy.
In a case such as this where the totality of the evidence would clearly indicate that the deceased died because he was hit by the first Defendant''s vehicle, the burden is upon the Defendants to submit explanation to rebut the presumption of negligence on the part of the driver of the bus, particularly when the testimony of DW 1 rules out any negligence on the part of the deceased or the cyclist.
The first Defendant did not make any attempt to examine the passengers of the bus who were all its employees. Those passengers, if examined, could have spoken of the. incident. The first Defendant, while in a position to adduce the best evidence, failed to do so.
In circumstances where the maxim res ipsa loquitur applies, the mere fact that the accident occurred might speak for itself and raise the inference of negligence so as to establish a prima facie case against the Defendants. The accident was such that it could have been in the ordinary course of things avoided had the persons in management and control of the bus exercised reasonable care and caution, especially when the driver ought to have foreseen the danger of overtaking the cycle in a narrow passage. In such circumstances, in the absence of any explanation, there arises a presumption of negligence against the Defendants.
The two essential requirements to attract the maxim res ipsa loquitur are (a) that the thing which caused the damage should have been under the control of the Defendant or his servants, and (b) that the accident was such that it would not in the ordinary course of things have occurred in the absence of negligence. See Mariamma v. C. Mohammed Moyin, 1981ACJ 538 (Kerala). As stated by Erie CJ. in Scott v. London and. St. Katherine Dock Co. (1865) 3 H&C 596:
...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.
K.K. Mathew J.'' says in Shyam Sunder v. State of Rajasthan, 1974 ACJ 296 (SC):
...The maxim (res ipsa loquitur) is only a convenient label to apply to a set of circumstances in which the Plaintiff proves a case so as to call for a rebuttal from the Defendant, without having to allege and prove any specific act or omission on the part of the Defendant.
The Plaintiff merely proves a result, not any particular act or omission producing the result. If the result in the circumstances in which he proves it, makes it more probable than not that it was caused by the negligence of the Defendant, the doctrine of res ipsa loquitur is said to apply, and the Plaintiff will be entitled to succeed unless the Defendant by evidence rebuts that probability.
The facts alleged by the Plaintiff speak for themselves, and in the absence of a proper explanation to rebut those facts, the necessary implication flowing from them would be that the accident was caused by the negligence of the second Defendant: Krishna Bus Service Ltd. v. Mangli 1976 ACJ 183 (SC); Mariamma v. C. Mohammed Moyin 1981 ACJ 538 (Kerala) and Syad Akbar v. State of Kamataka 1980 ACJ 38 (SC).
Res ipsa loquitur apart, the evidence on record clearly supports the Plaintiffs case that the deceased died as a result of the rash and negligent driving of the second Defendant. Seeing that the cycle was proceeding well ahead of the bus and then turned to the left hand side of the road when the bus sounded the horn at a point where it was far too narrow for the bus to overtake it, any reasonable person in the position of the second Defendant would have anticipated the danger of not waiting till the cycle passed the narrow ''area. The second Defendant ought reasonably to have foreseen the grave danger to which he was exposing the cyclist and his companion by overtaking them at that point. His own evidence as DW 1 regarding the width of the road and the bus highlights this aspect. These facts together with what followed, namely, the death of the deceased, clearly speak for themselves and irresistibly point to the negligence of the second Defendant, who was acting in the course of his employment, thereby making the first Defendant vicariously liable.
Road accidents, as V.R. Krishna Iyer, J. says in N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal 1980 ACJ 435 (SC):
...are one of the top killers in Our country, especially when the truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. ...The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their neighbour. Indeed, the State must seriously consider no-fault liability by legislation....
(emphasis supplied)
Owners or operators or drivers of buses or other vehicles have a duty to take care of other persons on the road, be they motorists, cyclists or pedestrians. Each of them is their ''neighbour'', as stated by Krishna Iyer, J., in language reminiscent of what Lord Atkin stated in the following words in Donoghue v. Stevenson (1932) AC 562 at 580:
...The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer''s question, who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.
The Defendants who failed to take care of the deceased who was their ''neighbour'', to whom they owed a duty to take care, are liable in damages to the Plaintiff.
We now come to damages. The Plaintiff has claimed a sum of Rs. 50,000/- as damages, together with interest, on the basis that the deceased, who was 26 years of age and robust in health, at the time of his death, was earning a monthly income of Rs. 700/-.P Ws 1, 2 and 3 have spoken in support of this claim. In the normal course the deceased would have had a life expectancy of almost 50 years. He was a well trained tailor with 14 years of experience. He was attached to a reputed establishment of tailors where he earned Rs. 20/- per day. In addition to this he had his private earnings as a tailor at the rate of Rs. 50/- per week. All this added upto Rs. 700/- p.m. The Plaintiff claims Rs. 50,000/-.
In Neelakantanachari Velayudhanachari v. Kerala State Road Transport Corporation 1977 ACJ 474 (Kerala), this Court stated:
In estimating damages u/s 1-A (of the Indian Fatal Accidents Act, 1855), the court has to ascertain the pecuniary loss suffered by the family of the deceased on account of his death which was caused by an actionable wrong. Non-pecuniary loss such as mental suffering and anguish for the loss of a spouse or a child will be excluded from the computation of damages what is payable under the section is not a solatium for injured feelings:... It is an amount calculated on a reasonable expectation of the pecuniary benefit which the beneficiaries would have derived had not the death occurred. The beneficiaries have to prove that by the death of the person they lost a reasonable probability of pecuniary advantage.
There is no hard and fast rule about assessment of damages under the Act. Each case depends upon its own facts and circumstances. In the absence of statutory guidelines, the court has to make an estimate of the pecuniary loss suffered by the members of the family of the deceased. The observation of Lord Wright that it is a hard matter of pounds, shillings and pence may appear to be too severe. Circumstances and attitudes have changed. Greater value is attributed to life while the purchasing power of the rupee has considerably diminished. Sentiments indeed have no place, but the court has to evaluate the pecuniary loss resulting from death on the basis of a proper appreciation of the relevant circumstances and hard realities. In doing so, the court has to take into account all reasonable probabilities of future benefits, but exclude from its consideration all fancied or bare possibilities or speculative conjectures. In other words, the damages are to be based on the reasonable expectation of pecuniary, benefit or benefit reducible to money value....
The evidence that the deceased was earning Rs. 700/- per month does not appear to have been seriously challenged. Considering the rate of payment at the time at which the accident took place, it is quite likely that the deceased was earning that much. He was a well trained and experienced tailor. He was young and unmarried. He was the sole breadwinner of his family consisting of himself, his mother and her dependent minor children. The evidence of the mother (PW 1) is that the deceased as a dutiful son was giving her Rs. 600/- per month for their upkeep. We have no reason to doubt this. He would have probably given her less had he married. Considering the probability of his marriage, and thus reducing his contribution to the upkeep of his mother and her dependent children, we doubt whether the mother would have continued to receive from the deceased as large a portion of his earnings as he was paying her. Even so the chances are that the deceased would have taken good care of his mother and her dependent children and expended for this purpose no less than Rs. 400/- p.m., particularly when the deceased with his experience as a tailor would have considerably improved his income in the years which followed.
In N. Sivammal v. Managing Director, Pandian Roadways Corporation 1985 ACJ 75 (SC), the Supreme Court, adopting the modicum of 10 years'' purchase, awarded Rs. 42,600/- on the basis of yearly income of Rs. 4,260/-, and added to it the customary figure of Rs. 5,000/- for loss to the estate. A total sum of Rs. 47,600/- was thus awarded where the monthly income of the deceased at the time of demise was Rs. 355/-. [See also Sukhbinder Kaur and Others Vs. Nirmolak Singh and Others, ].
Adopting this principle and mode of calculation, the Plaintiff could legitimately claim Rs. 53,000/-. We come to this figure on the assumption that no less than Rs. 400/- per month would have been the deceased''s contribution to the Plaintiff. The yearly income on that basis would have been Rs. 4,800/-. Multiplied by 10, it would be Rs. 48,000/-. Adding Rs. 5,000/- to this, the Plaintiff would normally be entitled to Rs. 53,000/-.
However the decree has to be limited to the plaint claim of Rs. 50,000/- together with interest at the rate of 6 per cent per annum from the date of suit till the date of realisation.
The judgment and decree of the court below are set aside. There shall be a decree in favour of the Plaintiff and against the Defendants in the above terms. The appeal is allowed accordingly. The Plaintiff is entitled to her costs here and in the court below.
A copy of the decree shall be forwarded to the District Collector for realisation of the court fee payable.
The learned Counsel for the Respondent makes an oral application under Article 134-A of the Constitution of India for leave to appeal to the Supreme Court. In our view, the case does not involve any substantial question of law of general importance which needs to be decided by the Supreme Court. The leave sought is accordingly refused.