- (1.) THIS second appeal arises out of a suit for the recovery of damages. The trial court substantially decreed the suit. But on appeal the lower appellate court set aside the decree and judgment of the trial court and dismissed the suit. The plaintiff has now come up in the instant second appeal.
(2.) THE facts in brief are these: on 19th May, 1961, the plaintiff, Smt. Bhagyawati Mittal, was travelling in one of the buses belonging to the U. P. Government Roadways. She was travelling from Delhi to Muzaffarnagar. It was being driven by the defendant respondent No. 2, Ram Kumar. An accident involving this bus took place near the municipal toll barrier of Muzaffarnagar. THE plaintiff sustained injuries due to this accident. Certain other consequences resulted directly as a result of this accident causing injury to the mental and bodily health of the plaintiff. She had to undergo medical treatment. Still, despite medical treatment, certain permanent disability in her right forearm came to stay. THE plaintiff alleged that the accident was caused due to the defect in the machinery of the vehicle and also due to rash and negligent driving of the bus driver who was also alleged to be incompetent for his job. THE plaintiff claimed that she was entitled to Rupees 30,000/- as total damages made up of Rupees 5,000/- for medical expenses etc. and Rupees 25,000/- as general damages. However, she claimed only a total sum of Rs. 15,000/- in the suit - Rs. 10,000/- for general damages and Rs. 5,000/- for medical expenses. The defence was that there was no defect in the vehicle and the driver was not at all negligent or rash in driving the same. It was denied that the driver was incompetent. The accident was alleged to have taken place due to an attempt on the part of the driver to save a child on the road. It seems that the child is alleged to have appeared all of a sudden before the vehicle and the driver was said to have made a great attempt to save the child. He had to apply the brakes suddenly with force. In the process the brakes failed. In this situation it was contended that it was an inevitable accident and not attributable to any human defect. Therefore, the defendants were not at fault and the plaintiff could not claim any damages on account of the alleged negligence on the part of the defendants. In any case, it was claimed that the damages claimed were excessive and far too remote. The trial court framed the following three issues:- 1. Whether the accident in question was the result of rashness and negligence on the part of the driver and also of the defective mechanism as alleged in paras 6 and 7 of the plaint? 2. Whether the plaintiff sustained the injuries, mental shock and bodily pain on account of the accident in question as alleged in para 8 of the plaint? If so, to what effect? 3. To what amount of damages, if any, is the plaintiff entitled against the defendants or any of them?
(3.) ALL the issues were decided in favour of the plaintiff. The trial court awarded the full sum of Rs. 10,000/- as general damages. It further awarded a sum of Rupees 4029/- as special damages. In all, thus, a decree for Rs. 14,029/-and annas four was passed in favour of the plaintiff against the defendant. The defendants went up in appeal to the lower appellate court and, as stated above, the said court set aside the trial court' s judgment and decree and dismissed the suit. The lower appellate Court recorded a finding in these words: " Not only has the plaintiff failed in proving that the bus was being driven rashly or negligently or at a high speed but also failed in proving that it had any such mechanical defect which could have been found out on a normal checking. On the preceding night the vehicle had been checked thoroughly by the Assistant Foreman and found to be in perfect working order." On the said finding, the lower appellate Court said that it was really not necessary to go into the question of damages because the plaintiff was not entitled to any amount. However, it did examine the controversy and came to the conclusion that " The maximum amount that could be awarded as general damages was Rs. 5,000/-.";