Decided on September 26,1974

Kannu Rowther Appellant


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. 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.
(3.) 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.' ;

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