VANAJAKSHI v. DIRECTOR, S.W.T.D., Alappuzha & Salim

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA TUESDAY, THE 20TH DAY OF JUNE 2014/30TH JYAISHTA, 1936** **RFA.No. 676 of 2008 ( ) ------------------------** **AGAINST THE JUDGMENT IN OS 40/2003 of ADDITIONAL SUB COURT,KOTTAYAM DATED 25-01-2007** **APPELLANT/PLAINTIFF:** **-------------------** **VANAJAKSHI, AGED 50 YEARS, W/O.LATE SUKUMARAN, CHALAPARAMPU KARIPURATH HOUSE, WARD-17, VAIKOM TALUK.** **BY ADV. SRI.JOHN JOSEPH VETTIKAD** ## **RESPONDENTS/DEFENDANTS** **----------------------** **1. DIRECTOR, S.W.T.D.DIRECTORATE, ALAPPUZHA TOWN, ALAPPUZHA DISTRICT.** **2. SALIM, AGED 41 YEARS, S/O.ABDUL KHADAR, ODAKAL HOUSE, ARPOOKARA PANCHAYATH, WARD NO.2, KOTTAYAM TALUK, KOTTAYAM DISTRICT.** **R1 BY ADV. GOVERNMENT PLEADER SRI.P.PADMALAYAN. R2 BY ADV. R GIRISH** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20.6.2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AL/-** ## **T.R.RAMACHANDRAN NAIR & P.V.ASHA, JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** R.F.A. No.676 of 2008 **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 20[th] day of June 2014 ## **JUDGMENT** ## **Ramachandran Nair , J.,** This appeal is from the judgment and decree in O.S. No. 40/2003 dated 25.1.2007 on the file of the Sub Court, Kottayam. The plaintiff in the suit is the appellant herein. The suit was filed claiming compensation consequent on the death of the son of the plaintiff one Udayakumar whose date of birth is 20.5.1971 as proved by Ext.A5. The accident occurred on 12.3.2000. He was aged 29 years at the time of the accident. The deceased was a passenger of A-53 boat, which was being operated from Vaikom to Thavanakkadavu. The 2[nd] defendant is the driver of the boat which is owned by the 1[st] defendant. 2. It was alleged by the appellant in the plaint that, at about 5.30 p.m the boat hit against the wall of the boat jetty. As a result of which, the deceased was thrown out from the boat and he sustained serious injuries from the under water propeller of the boat and died in the Government Hospital, Cherthala on the same day. **R.F.A.No.676/2008** :2: 3. The plaintiff is a widow and the deceased was the only son. He was a daily labourer earning `. 150/- per day. The plaintiff was solely depending upon him for her livelihood. He was unmarried as on the date of the accident. A total amount of `. 7,20,000/- was claimed as compensation. The plaintiff claimed `. 10,000/- for his funeral expenses and a total amount of `. 5,10,000/- have been claimed towards loss of contribution by reckoning `. 100/- per day as contribution to the family and another amount of `. 2,00,000/- towards loss of love, care and affection. The interest claimed is at the rate of 12% p.a. 4. In the written statement filed by the 1st defendant, it is averred that on 12.3.2000, the passenger boat A-53 owned by it started its voyage at about 5 p.m with passengers from Vaikom to Pallipuram jetty. When the boat came near to Kuttichal of Pallipuram Jetty the passengers were in a hurry to alight from the boat and rushed to its verge. While the boat was moving towards the jetty in between the wooden stalks installed for tying junkers, the passengers who stood in the jetty screamed out that somebody was lying in water. **R.F.A.No.676/2008** **==> picture [14 x 10] intentionally omitted <==** Immediately, the boat was directed towards the place where the man was lying. The laskers in the boat jumped into the water with life bags, and with the help of a small country boat, the person was brought to the shore. Even before the intervention of the department staff, the people who stood in the jetty led him to the Government Hospital, Cherthala. 5. While denying the cause of the accident as alleged in the plaint, it was averred in paragraph 5 that, the 2[nd] defendant was steering the boat with utmost caution and diligence. The first defendant denied the allegation that the boat hit against the side of the jetty. It was stated that, when the boat neared the jetty, the passengers including the deceased rushed to the edge of the boat and it is presumed that, in that hustle, the deceased might have lost his footing and slipped down from the boat. With regard to the claim amount, the first defendant denied the liability. Defendant No.2 was the driver of the boat and he did not file any written statement. 6. The plaintiff was examined as PW1 and another witness was examined as PW2. DW1 is the Sub Inspector of Police. DW2 is the driver of the boat and DW3 is the 'Srank' of **R.F.A.No.676/2008** **==> picture [14 x 10] intentionally omitted <==** the boat. The documentary evidence adduced by the plaintiff includes Ext.A5 copy of the S.S.L.C. Book to prove the date of birth of the deceased, Ext.A6 death certificate and Ext.A7 postmortem certificate. 7. The court below dismissed the suit after finding that, there is no proper evidence to prove that the accident took place due to the rash and negligent driving by the 2[nd] defendant. 8. Ext.A7 is the postmortem certificate which shows that the reason for the death is not drowning but due to hemorrhage and serious injuries have been noted including fracture of bones. 9. The evidence on the side of the plaintiff/appellant includes oral evidence of herself as PW1. In the proof affidavit she had given the details as averred in the plaint. The deceased was her only son and he was working in the Sidhari Engineer's Vaikom as a helper. According to her, on the crucial day, for going to the residence of his uncle at Thrichattukulam, he alighted the boat in question after taking ticket. She has deposed that after falling down from the boat, he happened to **R.F.A.No.676/2008** **==> picture [14 x 9] intentionally omitted <==** suffer serious injuries from the propeller of the boat and consequently, he died. Crime No. 81/2000 was registered by the police pursuant to the incident. It was stated that he was contributing `. 100/- per day after meeting his own expenses and was getting a daily wages at the rate of `. 150/- per day. He was a healthy person and she was fully depending upon his income. She alone is the legal heir of the deceased. According to her, the death was caused due to the negligence of the 2[nd] respondent, the driver of the boat. 10. In the cross examination, she has stated that, her husband was no more. A suggestion was made that, the deceased herein fell down from the boat after slipping down at the time of alighting from it, when the boat reached the jetty. It was denied by her. The deceased was not married at the time of the accident. 11. PW2 is the driver of an autorickshaw, which was being operated from the boat jetty. According to him, he was waiting for the passengers to alight from the boat No.A-53. On hearing the cry of the passengers, he rushed to the boat and then found the deceased lying at a distance of about 10 meters **R.F.A.No.676/2008** :6: away from the landing platform in the water. At that time, he had not succumbed to the injuries. PW2 is the person who accompanied him to the hospital. He was taken to the Government Hospital, Cherthala accompanied by another person. According to him, he fell down from the boat and sustained injuries. When his body got entangled with the propeller of the boat, he sustained serious injuries. He has stated further that, the deceased fell down from the boat when the boat hit against the wall of the boat jetty. 12. DW1 had not conducted the investigation in the criminal case and his evidence is not helpful. DW2 was the driver of the boat on the date of accident. According to him, the engine was slowed down at a distance of 20 meters from the boat jetty after the Srank gave the bell. At that time, from the shore some one cried loudly that, one person is lying in the water. He was found at a distance of 35 meters away from the boat jetty and the laskers of the boat, with the help of a country boat, took him to the shore. The police registered a case against him. He do not know anything about the incident. He was sitting inside the engine room of the boat. **R.F.A.No.676/2008** **==> picture [14 x 9] intentionally omitted <==** According to him, at about 50 meters away from the boat jetty, the boat will be slowed down. On hearing the bell, the boat will be slowed down and the laskers, with the help of ropes will tie the boat to the wooden poles attached to the platform of the jetty. By that time the boat will be in the reverse gear and the engine will be in the neutral position. After the boat is tied down to the poles, it will be stopped. According to him, on the side of the jetty, tyres will be there and hence there is no possibility of the boat hitting the jetty so as to cause any jerking. 13. In the cross examination, he has again narrated the details with regard to the position of engine room which is closed on all sides. He has also deposed that, while sitting inside the room, he will not be able to see the passengers. It is at a lower level by about 4 feet than the seats meant for passengers. According to him, he was acting upon the instructions of the Srank. He was plying the boat in tune with the bell given by the Srank. He cannot do any thing on his own and takes the boat as per the instructions of other employees. According to him, he heard about the incident **R.F.A.No.676/2008** :8: before the boat was stopped. The details he has deposed are as those told by others. He found a person lying about 20 meters away from the boat jetty, after coming out from the engine room. The platform is having a length of 13 metres. DW3 is the Srank of the boat. Going by his deposition, the boat will be slowing down at about a distance of 25 meters, by giving one bell. They had taken the boat around the wooden pole kept in the water. The said pole is at a distance of about 15 meters from the shore. The boat will be tied up to the poles remaining in the shore. He has also stated that there is a gap between the platform and the boat and there is a chance of a person falling down from the boat through the said gap. The deceased had fell down in the water and was taken out from the water by the laskar. At that time, he was not dead also, and DW3 did not notice whether he had sustained any injuries. 14. DW1 is the Sub Inspector of Police, who was not the investigating Officer and he has only stated that, a case was registered, which was referred later. ## **R.F.A.No.676/2008** :9: 15. Learned counsel for the appellant argued that, it is clear that the deceased fell down from the boat due to lack of care and due to sheer negligence of the employees of the boat. It is submitted that, the theory advanced by the defendants is that he might have fell down from the boat at the time when it had stopped near the jetty and when the passengers rushed towards the side of the boat for getting into the side panel. It is submitted that, there is no evidence for the same. Apart from the same, the learned counsel submitted that, the defence witnesses unanimously stated that, the deceased was found away from the shore by about 35 meters. Therefore, there is no chance of the deceased falling into the water at the time of alighting to the shore or at the time when the passengers are alleged to have come together just before the boat was shored. It is submitted that, both these possibilities are excluded and defendants have not come up with any reason to show as to how the deceased fell into the water. It is also submitted by the learned counsel by referring to the postmortem certificate that, the death is not caused due to drowning but due to the serious injuries and hemorrhage. It is submitted that, after **R.F.A.No.676/2008** **==> picture [20 x 10] intentionally omitted <==** falling down from the boat, he sustained injuries from the propeller. Unless his body came into contact with any hard and sharp surface, there is no possibility of getting injured, while alighting into the shore. The injuries include fractures of the bone also. 16. Learned counsel further submitted by reference to the reported decisions that, in the circumstance of the case, the doctrine of 'res ipsa loquitur' will apply. Our attention was drawn to the following judgments reported in **Leena Mathew v. Kerala Shipping Corporation (1988 (1) KLT 212)** , **Mariyumma and Others v. Mohammed and Others (1982 KHC 211),** as well as the decision of the Apex Court reported in **Cholan Roadways Ltd. v. Thirugnanasambandam (2005(3) SCC 241)** . 17. The Learned Government Pleader vehementally submitted that, the only theory that can be attributed for the accident is that, negligently and without taking any care, the deceased was alighting from the boat and in that process, he fell down for which, the defendants are not responsible. Actually, the said argument goes against the pleas adopted in ## **R.F.A.No.676/2008** **==> picture [19 x 10] intentionally omitted <==** the written statement itself. Going by the written statement, especially in paragraph 2, the spot where the deceased was found is at a distance of about more than 30 meters from the shore. This rules out the possibility that, the deceased had slipped down to the water when the boat was close to the shore. The points to be considered are the following: (a) Whether any negligence can be attributed to the deceased for the accident and whether the doctrine of res ipsa loquitur will apply; and (b) The quantum of damages. 18. Before going into the legal principles governing the matter, we will have to consider various aspects spoken to by the witnesses including the witnesses on the defence side. Even though the defence put forward is that the deceased might have fell down when the passengers had huddled together, there is no supporting evidence for the same. 19. The oral evidence of PW2 will show that, the deceased was found in the water at a distance of 10 metres away from the platform near the jetty. DW2 was the driver of the boat and he was consistent in saying that the deceased **R.F.A.No.676/2008** **==> picture [20 x 10] intentionally omitted <==** was found 35 meters away from the jetty. According to him the platform is having 13 ft in length. It will be safe to take into account, the version by DW2 on this aspect, since he was the driver of the boat. Therefore, we can safely conclude that, the laskers saw the deceased at a distance of more than 30 meters from the shore of the boat jetty and if that be so, the theory attributed by the defendants as to the cause of the accident cannot be accepted. 20. The learned Government Pleader submits that the plea of the plaintiff that, the deceased fell down when the boat hit against the wall of the jetty also is not proved. In fact, in a case like this, actual cause of the accident is not a matter within the exclusive knowledge of the plaintiff. If that be so, in view of the two different versions, the court will have to go by the well established principles to assess and weigh as to how far the defendants against whom a claim is raised can escape from the liability. 21. In this context, we will refer to the doctrine of 'res ipsa loquitur'. In the decision of this Court reported in **Mariyumma and Others v. Mohammed and Others (1982** **R.F.A.No.676/2008** :13: ## **KHC 211),** the Division Bench held in para 10 as follows: “ _The two essential requirements to attract the doctrine of 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._ 22. The Division Bench relied upon the decision reported in **Scott v. London and St. Katherine Docks Co., (1865 (3)** ## **H & C 596)** and the principle stated therein has been quoted, which is as follows: _“.....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”_ . ## 23. It will imply that, in a case where the accident is such as, in the ordinary course of things does not happen if those who have the management, use proper care, then in the absence of explanation by the defendants, it can be reasonably concluded that, the accident arose for want of care. Going by the evidence adduced by DWs 2 & 3, it can be seen that, both of them did not see, how the accident occurred and they were **R.F.A.No.676/2008** :14: deposing only based on hear say information from others. 24. The above principle has been accepted by the Supreme Court, as is clear in the decision reported in **Cholan** **Roadways Ltd. v. Thirugnanasambandam (2005(3) SCC** **241)** . Their Lordships relied upon the important decision viz., **Pushpabai Purushottam Udeshi v. Ranjit Ginning & Pressing Co. (P) Ltd. (1977 (2) SCC 745)** . The apex court in the said decision in paragraph 6 has held as follows: _“The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident 'speaks for itself or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence.”_ 25. A Division Bench of this Court in the decision reported in **Leena Mathew v. Kerala Shipping Corporation (1988 (1)KLT 212),** also by relying upon the decision of the **R.F.A.No.676/2008** :15: ## Apex Court has held in paragraph 9 as follows: “ To sum up: The irresistible inference deducible from the facts already found, is that the injury complained of was the result of the negligence on the part of the defendant. The cause of the accident is not known and no reasonable explanation as to the cause of the accident is given by the defendant. The incident tells its own story of negligence on the part of the defendant. The story so told is clear and unambiguous. It is to these cases the maxim res ipsa loquitur applies”. ## 26. Their Lordship in paragraph 10 relied upon an earlier decision of the Supreme Court reported in **Municipal Corporation of Delhi case (AIR 1966 SC 1750)** which reads as follows **:** _“The Supreme Court in_ _**Municipal Corporation of Delhi** case_ _**(AIR 1966 SC 1750)** has also declared that this doctrine is an exception to the normal rule that it is for the plaintiff to disprove it. The Supreme Court has further observed that “where the doctrine applies, a presumption of fault is raised against the defendant, which, if he is to succeed in his defence, must be overcome by contrary evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on his part.”_ 27. The principle was further explained by the Apex Court in **Syad Akbar v. State of Karnataka** (AIR 1979 SC 1848). We extract the said legal position hereunder: **R.F.A.No.676/2008** :16: _“The maxim applies to cases where the peculiar circumstances constituting the event or accident pro-claim that the negligence of somebody is the cause of the event or accident. In the first place, the event or accident must be of a kind which does not happen in the ordinary course of things if those who have management and control use due care; secondly, it must also be shown that the event or thing which caused the accident was within the defendant's control”._ ## Both these conditions are attracted herein. 28. Learned counsel for the appellant further relied upon the following principles contained in Ratanlal & Dhirajlal's the “The Law of Torts”, 25[th] Edn. at page 595: _“Res ipsa loquitur is in essence no more than a common sense approach, not limited by technical rules, to the assessment of the effect of evidence in certain circumstances. It means that a plaintiff prima facie establishes negligence where (i) it is not possible for him to prove precisely what was the relevant act or omission which set in train the events leading to the accident. but (ii) on the evidence as it stands, i.e., in the absence of any evidence from the defendant. it is more likely than not that the effective cause of the accident. whatever it may have been. was some act or omission of the defendant or of someone for whom the defendant was responsible, which act or omission constitutes a failure to take proper care for the plaintiff's safety. The application of res ipsa loquitur is not necessarily excluded merely because there has been a possibility of outside interference with the thing through which the accident happened._ **R.F.A.No.676/2008** **==> picture [20 x 10] intentionally omitted <==** The principles we have discussed above as laid down in various judgments will therefore squarely apply here. 29. From the pleadings and evidence in this case what emerges is the following:- There is no dispute that, the deceased was a passenger in the boat on that day from Vaikom to Thavanakadavu. He was found lying in water at a distance of about 35 meters from the boat jetty. He had sustained very serious injuries going by Ext.A7 postmortem certificate. The theory that he might have slipped down from the boat very near to the shore also cannot be accepted. Therefore, in respect of passengers travelling in a boat, the defendants had to take reasonable care and to see that, no untoward incident happened causing danger to the life of the passengers. Since the plaintiff has proved that the accident has occurred and, it is clear that as no reason can be attributed on the part of the deceased, to cause it, it will be safe to conclude that, the accident occurred only due to the negligence of the defendants as there is no reasonable explanation. This is a case where the principle of 'res ipsa loquitur' squarely applies. **R.F.A.No.676/2008** **==> picture [20 x 10] intentionally omitted <==** 30. We are of the view that, the view taken by the court below, is not correct in tune with the well established principles we have discussed above. The court below went wrong in straight away accepting the narration of the witness examined for defence and in concluding that the boat was being plied in the normal manner. Of course, both the witnesses DWs 2 & 3 have spoken in the manner in which, in normal circumstances, a boat may have to be led to the shore. There cannot be any quarrel about the same. But in a situation like this, where a passenger is found lying in water at a distance of 35 meters away from the boat jetty, unless there is reasonable explanation from the part of the defendants, the relevant principles discussed and accepted by the Apex Court and this Court based on the doctrine of 'res ipsa loquitur' will come to the aid of the plaintiff. Hence the defendants are liable on this score. 31. The next question is with regard to the quantum of compensation claimed. The deceased was aged 29 at the time of the accident and he was working as a helper earning `150/- per day. Therefore, 1/3 can be deducted towards own **R.F.A.No.676/2008** :19: expenses and the contribution to the family is considered as `. 100/- per day. As far as the wages of labourers are concerned, it is safe to presume that, the wages will be on the increase periodically. The Apex Court in the decision reported in **Rajesh and Others v. Rajbir Singh and Others (2013 (9) SCC 54)** which is relied upon by the learned counsel for the appellant (paragraph 17) referred to the earlier decision in **Santosh Devi v. National Insurance Co. Ltd., (2012 (6) SCC 421, and** it is held in paragraph 17 as follows: _“Although, the wages/income of those employed in unorganised sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the government employees and those employed in private sectors, but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching clothes. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour like barber, blacksmith, cobbler, mason etc”_ . 32. Thus, the Apex Court has held that, the court can take judicial notice of the fact that with a view to meet the ## **R.F.A.No.676/2008** **==> picture [20 x 10] intentionally omitted <==** challenges posed by high cost of living, the persons falling in the latter category (daily rated wage earners in the unorganised sector) periodically increase the cost of their labour. 33. The plaintiff alone was the dependent of the deceased being the mother. She was only aged 44 at the time of the accident. With regard to the fixation of the suitable multiplier, the learned counsel relied upon the table provided in the decision reported in **Sarla Verma & Others v. Delhi Transport Corporation & Another (2009 (6) SCC 121)** . The date of birth being 20.5.1971, he was aged nearly 29 at the time of the accident. Going by the table for persons between the age of 26-30 years, 17 can be the multiplier. The said decision is one concerning the principles for assessment of compensation in Motor accident claim cases. 34. Of course, the deceased was a bachelor, but there was possibility for his getting married. But still, she alone being the member of the family, it can be naturally conceived that, the deceased will contribute even after marriage,and will take care of her. There are prospects of increase in wages **R.F.A.No.676/2008** :21: also, even though, he was a labourer in an unorganised sector. Therefore, `.100/- can be safely taken as contribution and we will adopt the multiplier as 16. Therefore, the total amount of contribution is `. 5,76,000/-, which will be the damages proportionate to the loss caused by the death. Apart from the same, the plaintiff has claimed an amount of `.10,000/- as funeral expenses, which is only reasonable. An amount of `. 2 lakhs have been claimed towards loss of love and affection. Actually, the plaint claim is `. 7,10,000/- even though, loss of contribution is treated as `. 5,10,000/-. Now as we have found that, the multiplier 16 can be taken, since the total claim is below `. 7.10 lakhs, we will fix the contribution as `.5,76,000/-. Towards pain and suffering and loss of expectation of life of the deceased and the mental agony of the mother, we are awarding `.30,000/-. Even though `.2 lakhs has been claimed towards loss of love and affection, we are not awarding anything, to avoid duplication and the above amount awarded at `.30,000/- will be reasonable. Since the total claim is `.7.10 lakhs, we will be justified in awarding `.30,000/- towards the heads mentioned ## **R.F.A.No.676/2008** **==> picture [20 x 10] intentionally omitted <==** above. Thus the total amount of compensation is fixed at `. 6,16,000/-. We grant 6% interest from the date of the suit till the date of realisation. The indigent O.P was filed on 14.6.2001. The appellant is also entitled for award of proportionate costs throughout. Thus there shall be a decree allowing the appellant to realise an amount of `. 6,16,000/- from the defendants, along with 6% interest from the date of suit till realisation and the 1[st] respondent being the owner of the boat will be liable to pay the amount to the appellant. Sd/- ## **T.R.RAMACHANDRAN NAIR, JUDGE** Sd/- ## **P.V.ASHA, JUDGE** AL/- True copy P.A to Judge