Judgment :- 1. Defendants 1 and 2 are the appellants. A suit was filed against them by the plaintiff for recovery of Rs 1,00,000/-as compensation for the injuries sustained by him when a motor vehicle owned by the first defendant and driven by the second defendant hit and knocked him down on the road. On 30-5-1972 at about 2-15 P.M. bus No. KLE 4327 which was then running towards the east on the Ernakulam-Mattancherry road in front of the southern gate of the Naval Base hit the plaintiff and knocked him down and thereby serious injuries to the head and limbs were sustained by the plaintiff. He became unconscious and was removed immediately to the Government General Hospital, Ernakulam wherein he was an inpatient from 30-5-1972 to 1-7-1972. Though he was discharged on 1-7-1972, on account of the sudden hit of the bus the occipital area and the brain of the plaintiff got damaged and he became partially blind and lost his co-ordination in vision. Even after expensive treatment and expert attention there is no improvement to the plaintiff's physical and mental condition. Because of the loss of sight and memory power, the plaintiff has become incapable of following his erstwhile profession, namely watch-repairing which requires high expertise and skill and keen eye-sight. According to the plaintiff he has lost his earning capacity permanently. The bus was driven at the time of the accident by the second defendant in a very rash, careless and negligent manner and the plaintiff sustained the injuries on account of the second defendant's negligence. The plaintiff estimated the compensation at Rs. 1,80,053.44 under three distinct heads, Rs. 5,000/-for pain and suffering, Rs. 2,253.44 for treatment expenses and compensation for loss of future earnings at Rs. 1,72,800/-. The defendants contested the claim. They admit that the bus was being driven by the second defendant but he was driving the bus at a low speed in order to stop at the Naval Base bus stop Before the bus stopped the plaintiff who was on the northern side of the road suddenly crossed the road to the south, and as a result, to avoid a fatal accident the bus had to be swerved to the south and in that process it hit him and he fell down. The allegation of rash and negligent driving was totally denied. The allegation of rash and negligent driving was totally denied. The nature of the injuries sustained by the plaintiff and the amount claimed as damages were also denied. The plaintiff was only a watch repairer getting a small income daily and that occupation is continued by the plaintiff even after the accident. There was a criminal case as CC. 96 of 1973 against the second defendant and he was acquitted by the court. The allegation that the plaintiff has undergone severe pain and mental shock is denied. His future earning capacity is not lost at all and whatever the amount the plaintiff is entitled to has to be claimed against the Insurance Department as the vehicle was insured under the Third Party Scheme. After the written statement of the defendants, the State Insurance Department, the Insurer, was also made a party. The department's contention was only that the claim is excessive and if the plaintiff obtains a decree against defendants 1 and 2 the third defendant is liable only up to Rs. 20,000/ The lower court found that the accident took place due to the rash and negligent driving of the bus by the second defendant and not due to any negligent act of the plaintiff. The court also found that the plaintiff sustained injury and that was the direct and proximate result of the accident. Rs 3,000/-was awarded towards shock, pain and suffering, Rs. 1,000/-was awarded towards medical expenses and a sum of Rs 76,464/-was awarded as general damages, by way of loss of future earnings. The liability of the third defendant was determined as Rs 20,000/-and a decree was granted to recover this amount from defendants 1 and 2. This decree is challenged in this appeal. 2. The first point that arises for consideration is whether the second defendant was driving the bus in a rash and negligent manner. The plaintiff's case is that he was proceeding towards west along the southern side foot-path on the Ernakulam-Mattancherry road in front of the southern gate of the Naval Base and the bus was running towards the east coming from Mattancherry. That was running along the northern side of the aforesaid road, but it suddenly swerved to the south, ran off-side the road, hit the plaintiff and knocked him down. That was running along the northern side of the aforesaid road, but it suddenly swerved to the south, ran off-side the road, hit the plaintiff and knocked him down. But according to the defendants, the second defendant was only running the bus at a slow speed in order to stop at the nearby Naval Base bus-stop, but suddenly the plaintiff without taking any precaution negligently crossed the road and therefore was hit by the bus and he fell down. To avoid a fatal accident the bus had to be swerved to the south. 3. The issues as framed would appear to put the burden on the defendants. That is clearly wrong. In a case of this nature it is for the plaintiff to prove that the defendants are negligent. The plaintiff has let in some oral evidence and also relies on the principle of the maxim Res ipsa loquitur to establish the liability of the defendants. The appellants' counsel prefaced his argument with a reference to the decision in Parameswaran Pillai v. Sirkar (19 TLJ.1298) and also the decision in 1969 ACJ 19. The relevant passage from the former case at page 1301 read as follows: "No doubt there are drivers who are mad after the topmost speed and callous to the safety of others; but pedestrians are by no means few who pay no heed to a motor car in motion and make no attempt to keep out of harm's way. It is not seldom that one meets people walking listlessly on the roads as if they have a primary claim to the use of public roads and motor vehicles can be driven along only by their leave and license. Where thus the odds of recklessness are more or less evenly balanced between the pedestrians and motor car drivers, where there is room for unconscious prejudice, the need for sifting the evidence can hardly be exaggerated. The pedestrians far outnumber the chauffeurs. And when a mishap of the kind we have to deal with here occurs, the general outcry is invariably against the chauffeurs". This is to draw the attention of the court that sympathy to an injured man should not affect the appreciation of the evidence and that in very many cases pedestrians on the road never observe the rules of the road and many accidents are due to that. This is to draw the attention of the court that sympathy to an injured man should not affect the appreciation of the evidence and that in very many cases pedestrians on the road never observe the rules of the road and many accidents are due to that. As a general statement there is much truth in what the appellants' counsel points out. If the pedestrians observe the rules of the road many accidents could be avoided. There is a feeling among many that the vehicles should adjust to the movements of the pedestrians and the rules of the road are only for the vehicles and not for them. It is high time that this impression is changed. Of course in narrow roads it will be very difficult for pedestrians to keep to the side of the road. The side of the road also may be so bad that it may be impossible to walk along it and pedestrians may be compelled to take to the road itself. 4. But these cautions are out of place in this case. Here there are two conflicting versions. According to the defendants when the vehicle was nearing the Naval Base Bus stop and was about to stop the plaintiff crossed the road and got hit by the bus. On the other hand the plaintiff's case is that he was walking along the southern side of the road going westwards. The bus going eastwards keeping the northern side suddenly swerved to the right, got into the southern foot-path and hit him. So both sides agree that the bus took a sudden turn to the right. Whether it is to avoid a fatal accident as alleged by the defendants or this is a case of unexplained change of course in the driving is only in question. In such a case the evidence let in on both sides calls for examination. If the defendants' case is not proved the case alleged by the plaintiff becomes more probable. There is only the interested testimony of the second defendant, the driver, to make out that the plaintiff, who was on the northern side of the road, suddenly crossed the road very near the bus and in the movement of the bus got hit. This is a case which is capable of positive proof. There is only the interested testimony of the second defendant, the driver, to make out that the plaintiff, who was on the northern side of the road, suddenly crossed the road very near the bus and in the movement of the bus got hit. This is a case which is capable of positive proof. The conductor and many passengers in the bus would have seen the incident and considering the time and place where the accident occurred there will be other persons, who would have witnessed the accident. No attempt is made by the defendants to prove by any positive evidence that the plaintiff was at the northern side of the road and crossed the road suddenly. So that part of the case remains unsubstantiated. In this background the evidence let in by the plaintiff can be considered. Pw3 is the plaintiff. According to him his brother's wife and children had come to the Naval Base Hospital, he had gone to see them and after obtaining medicine they had to go to Edacochin and for that purpose he had taken them to the bus stop on the southern side of the road. One MTS. Bus came from Ernakulam and they were boarded into that. Thereafter the plaintiff with the idea of returning to Thevara was waiting for a friend to come and pending his friend's arrival he was walking along the southern side of the road towards west. At that time the bus driven by the second defendant came at high speed, swerved to the right, and hit him. In the cross-examination he stated that when he saw the bus at a distance of 10 to 13 metres away he moved to the side, but immediately the bus came and hit him. Though there is a suggestion in the cross-examination that the plaintiff crossed the road at a point very near the coming bus and got hit by it, that part of the case has not been seen pursued in the cross-examination. In such circumstances there is no reason to suspect the credibility of the witness or the truth of his statement. His evidence is corroborated by the evidence of three other witnesses, namely, pws. 4, 6 and 7. In such circumstances there is no reason to suspect the credibility of the witness or the truth of his statement. His evidence is corroborated by the evidence of three other witnesses, namely, pws. 4, 6 and 7. All of them claim to be eye-witnesses to the occurence and are consistent in their statement that the plaintiff was proceeding westwards along the southern side of the road and the bus coming from the west via northern side suddenly swerved to the right and hit the plaintiff. According to the appellants counsel these witnesses are hired for the occasion and cannot be believed. pw. 4 is a resident of Chandroor in Aroor Village, pw. 6 also belonging to the same place and pw.7 is a resident of Eramalloor. The plaintiff's brother resides at Edacochin and a suggestion is made that all these witnesses have been hired at the instance of the plaintiff's brother to testify to the case. Apart from that suggestion there is no reason why their evidence cannot be believed. pw 4, no doubt, says that the defendant's bus coming at a high speed from the west, suddenly swerved to the right and hit the plaintiff. He said that he was sitting on the slope of the railway track very near the bus stop waiting for the bus. He also said that the bus stopped after hitting a post nearby. This witness also said that he saw blood coming out of the mouth and nose of the plaintiff due to the accident. According to the appellants even pw. 3 had not stated so. That may be, but these are all minor discrepancies which do not affect the evidence regarding the main incident. So far as that is concerned this witness is positive in his statement that he saw the bus coming from the west suddenly turning to the right, got into the southern footpath and hit the plaintiff. The appellants' counsel also pointed out the police report and the mahazar of the place of occurrence and tried to make out from the marks at the spot, that the bus was not coming at a high speed and so the testimony of this witness cannot be believed. The mahazar was prepared only on the next day. All along the traffic was going on the road. The mahazar was prepared only on the next day. All along the traffic was going on the road. So the statement in the police report is of little assistance in this case There is not even a suggestion in the cross-examination of this witness that the plaintiff crossed the road at a point very near the incoming bus and the bus had to be swerved. Hence we believe the testimony of pw. 4 to come to the conclusion that the plaintiff was not crossing the road and he was proceeding towards west through the southern side of the road when the accident occurred. To the same effect is the evidence of pws. 6 and 7. pw. 6 also stated that the plaintiff was proceeding towards the west along the southern side of the road. His son by name Michael is employed in the Naval Base. After seeing him in the Naval Base the witness was waiting at the bus stop to catch the next bus to go to Aroor. It was at that time he saw the bus coming from the west at a high speed and suddenly swerved to the right and hit the plaintiff. The evidence of" this witness also is sought to be discredited saying that he belongs to Chandroor and the version of the incident as stated by the witness is not the version given by the plaintiff and therefore pw. 6 cannot be believed. There is no such discrepancy in the evidence. This witness is positive in his statement that the plaintiff was proceeding westwards from the southern side and the bus coming along the northern side from the west, turned suddenly to the south, and stopped after hitting a concrete post on the southern foot-path. In that process according to the witness, the plaintiff was hit by the bus. There is nothing to discredit this version. We accept the same. pw. 7 also speaks to the same effect and the lower court has, after discussing his evidence chosen to believe him. We do not find any reason to come to a different conclusion on the credibility of this witness also. So from the evidence of pws. 4, 6 and 7 the plaintiff's version that he was proceeding westwards through the southern side of the road near the Naval Base Bus Stop at the time when the accident occurred is amply proved. We do not find any reason to come to a different conclusion on the credibility of this witness also. So from the evidence of pws. 4, 6 and 7 the plaintiff's version that he was proceeding westwards through the southern side of the road near the Naval Base Bus Stop at the time when the accident occurred is amply proved. The lower court is right in its conclusion on this part of the case. 5. The appellants' counsel referred to the documents produced by the defendants to prove that, as pointed out in XI inspection report, there was no mechanical defect in the bus and the various tyre marks at the road, noticed in the Mahazar Ext X2, will conclusively show that the bus was not running at a high speed. This may be true. Mahazar prepared after 24 hours of the place having a heavy traffic, is not decisive of this question. The fact remains that the bus coming from the west through the northern side of the road had suddenly turned to the right and gone to the south side of the road and stopped after hitting a concrete post. In the absence of sufficient evidence to prove that the plaintiff crossed the road very near the incoming bus, and that to avoid a fatal accident the bus had to be swerved to the right, the defendants will have to prove how and why the bus swerved to the right and hit the plaintiff. Otherwise, the accident will tell its own story and the doctrine Res ipsa loquitur applies. It will be useful to consider what the doctrine means and whether it can be applied here. 6. Two lines of approach in regard to the application and effect of the above maxim are stated in the decision of the Supreme Court in Syed Akbar v. State of Karnataka (AIR. 1979 SC. 1848) Para.26 and 27. The second line of approach is stated thus: "According to the other line of approach Res ipsa loquitur is not a special rule of substantive law, that functionally, it is only an aid in the evaluation of evidence, "an application of the general method of inferring one or more facts in issue from circumstances proved in evidence." In this view, the maxim Res ipsa loquitur does not require the raising of any presumption of law which must shift the onus on the defendant. It only, when applied appropriately, allows the drawing of a permissive inference of fact, as distinguished from a mandatory presumption properly so-called, having regard to the totality of the circumstances and probabilities of the case. Res ipsa is only a means of estimating logical probability from the circumstances of the accident. Looked at from this angle, the phrase (as Lord Justice Kennedy put it), Russell v. London & South Western Rly. C. (1908) 24 TLR 548 only means, "that there is, in the circumstances of the particular case, some evidence which, viewed not as a matter of conjecture; but of reasonable argument, makes it more probable that there was some negligence, upon the facts as shown and undisputed, than that the occurrence took place without negligence It means that the circumstances are, so to speak eloquent of the negligence of somebody who brought about the state of thing which is complained of." Applying this principle to the facts of this case an inference of negligence on the part of the second defendant as drawn by the lower court cannot be said to be incorrect. In agreement with the lower court we hold that the case of negligence on the part of the second defendant is proved. 7. The next aspect of the case is how to measure the damage sustained by the plaintiff. He was in the hospital as an inpatient from 30-5-1972 to 1-7-1972. Even thereafter he had to undergo treatment at the Calicut Medical College Hospital. The lower court has gone into this question under three heads. A sum of Rs. 1,000/- has been awarded towards expenses incurred for medical treatment. The plaintiff claimed Rs. 2,256 44 and produced Exts. A-5 to A 63 which are bills received for purchasing medicines. No doubt in most of the bills the name of the plaintiff is not shown. But it will be too much for the defendants to contend that these bills were manufactured for the purpose of this suit. The amount covered by these bills come to only Rs. 498.90. Besides these the plaintiff claimed that he has spent other amounts towards expenses for medical treatment. He had to go to Calicut Medical College and was an inpatient there for 10 days. The expenses incurred for travel and assistance all should be reckoned as part of the expenses for medical treatment. Hence the sum of Rs. 498.90. Besides these the plaintiff claimed that he has spent other amounts towards expenses for medical treatment. He had to go to Calicut Medical College and was an inpatient there for 10 days. The expenses incurred for travel and assistance all should be reckoned as part of the expenses for medical treatment. Hence the sum of Rs. 1,000/- awarded by the lower court, in the circumstances of this case, is not at all excessive. We agree with the conclusion arrived at by the lower court in this regard. 8. The next item of damage is the amount under the head of loss of future earnings. To a large extent it is a consequence of the loss of the earning capacity which flows from the injuries sustained. In that way the consideration of the question of loss of future earnings overlaps the consideration of the question of loss of earning capacity. The loss of future earnings consists of the estimate of the pecuniary loss which is likely to be suffered by the plaintiff. This is attributed to the fact that the plaintiff can never carry on the same profession and is fit, if at all only for some other employment at a reduced rate. 9. A consideration of this question calls for a mention of the permanent injury which the plaintiff has sustained. As a result of the accident the occipital region of the plaintiff's brain has sustained an injury which has caused diplopia. This is proved by the evidence of pws. 5 and 8 and also the certificates Exts. A-66, A-67, A-68 and A-70. Ext. A-70 is the treatment charge sheet maintained at the Ernakulam Hospital. That shows the nature of the treatment to the petitioner. Ext. A-66 is the medical certificate issued to the plaintiff by Dr. V K. Subramonian, General Hospital, Ernakulam. Ext. A-67 is a letter given by Dr. V. K. Subramonian to Dr. Rajan of the Calicut Medical College Hospital for further treatment and examination. Strong objection is taken by the appellants' counsel regarding the admissibility of these records without the evidence of Dr. Subramonian. The evidence of Dr. Subramonian would have been useful. But the plaintiff could not examine him because this doctor was out of India at the time of the trial of the case in the lower court. Strong objection is taken by the appellants' counsel regarding the admissibility of these records without the evidence of Dr. Subramonian. The evidence of Dr. Subramonian would have been useful. But the plaintiff could not examine him because this doctor was out of India at the time of the trial of the case in the lower court. pw 5 is the Resident Medical Officer attached to the Ernakulam Hospital, and he proves Exts. A-66 and 4-67. pw. 5 identifies the signature of Doctor Subramonian in Exts. A-66 and A-67. Ext. A-66 contains the seal of the General Hospital Ernakulam. It contains the particulars of name and address of the patient, the date of accident, the kind of injuries, present condition and general remarks. When a patient is treated in the General Hospital a record has to be maintained to show the particulars of the patient, the injuries sustained and the treatment given to him When a certificate is asked for by the patient from the hospital it is the duty of the hospital authorities to issues the certificate in the course of their official business. So Ext. A 66 is a relevant piece of evidence, relevant under under S.35 of the Evidence Act. As the person who issued the certificate is not available for examination without an enormous delay and expense his certificate is relevant under S.32 of the Evidence Act. But the genuineness of the certificate has to be proved. That is what is attempted to be done by the plaintiff by examining pw. 5 who was the Causality Medical Officer attached to the General Hospital, Ernakulam. He proves also Ext. A-67 the letter given by Dr. Subramonian to Dr. Rajan of the Calicut Medical College Hospital for further treatment. Exts. A-66 and A-67 show that the plaintiff sustained a head injury at the left lower portion of the head. Ext. A-68 is the certificate issued by pw. 8 Dr. E. T. Kuriakose, Superintendent, General Hospital, Ernakulam. He is an eye-specialist and his certificate shows that the plaintiff has diplopia due to paralysis of the superior oblique left eye and is not curable with glass. The plaintiff has given evidence that these injuries have been sustained by him on account of the accident. The effect of the injury which seems to be not curable is that he has double vision. The plaintiff has given evidence that these injuries have been sustained by him on account of the accident. The effect of the injury which seems to be not curable is that he has double vision. There is no co-ordination of the vision of the two eyes. He has also deposed that he is unable to do any kind of work, much less watch repairing, due to this diplopia. The lower court noticing the plaintiff at the time of examination recorded that the plaintiff cannot even walk properly. So this is a case where the earning capacity of the plaintiff has been very much lost. 10. Then the question is how to assess the loss of future earnings. The court's task is to give the person a present value of the prospective loss. It must be given on the fairest estimate, one can make, of the probable continuance of the plaintiff's profession and what that income would be. This is a very difficult legion which depends on a number of uncertainties which make the calculation very difficult. It includes such matters as the probable length of time of the plaintiff's future earning capacity, bis prospect of obtaining an employment and the normal hazards of life. In practice the method most frequently adopted is to state in general terms what the loss of earning capacity is and then to state that in the ordinary course of events the plaintiff must have expected to continue to earn at the pre-accident income, for say 20 years. From this the court makes a discount for various contingencies and also take into account the fact that the plaintiff will be receiving a lump sum down instead of daily, or weekly, or monthly payments. It is of course impossible to say with any certainty what multiple should apply to the basic net annual loss. It will vary from case to case. Actuarial evidence is also of assistance where the rate of future loss can be assessed at a firm figure and the plaintiff has suffered no substantial loss of expectation of life. Further the assessment of damages has to be on the basis that the total amount awarded will be exhausted by the end of the contemplated number of years and during that period the plaintiff will have used up not only the capital itself, but also the income which he received from the investment. Further the assessment of damages has to be on the basis that the total amount awarded will be exhausted by the end of the contemplated number of years and during that period the plaintiff will have used up not only the capital itself, but also the income which he received from the investment. (See Tavlor v. O' Counor-1971 A.C.115) 11. Then the question is what is the estimate of the monthly or annual income of the plaintiff for the pre-accident period. The plaintiff has not produced his accounts. He is a watch-repairer and had a shop which belongs to St. Joseph's Church taken on rent, the monthly rent payable being Rs. 30/-. The electric charges used to be Rs.12/-per month. He had two assistants, one assistant was being paid at the rate of Rs. 2/-and the other at the rate of Rs. 1.50 per day. This aggregates to Rs. 135/-a month and this with the expenses for purchase of lubricants and other things for his professional work, will work out to Rs.150/-a month According to pw. 3 he used to get daily an average of Rs. 25/-. This may be an exaggeration and the same can be fixed at Rs.I5/-only. According to the plaintiff he used to have 24 days' work in a month. Multiplying 24 x 15 it will come to Rs. 360/-a month. Deducting the expenses, monthly net income will be Rs 210. For 12 months this will be Rs. 2520 /-. Multiplying it by 10 this will work out to Rs. 25,200. If this is invested that will generate, by way of interest, an annual income more or less equal to the estimate of the plaintiff's earning capacity. The lower court has estimated that the plaintiff will be able to work till the age of 64 if not more. The multiple above mentioned will be sufficient even to cover inflation and exhaustion of the total sum by the end of the period. The lower court's calculation of his daily income at Rs. 21 /-, annual income at Rs. 4248/-, multiplying the same by 24 years and allowing a discount of 1/4 on account of imponderables, i. e. uncertainty of life to find a sum of Rs. 78,464/-as the loss is an exaggeration. The amount that can be awarded is only what is shown above, namely Rs. 25200/-. 12. 21 /-, annual income at Rs. 4248/-, multiplying the same by 24 years and allowing a discount of 1/4 on account of imponderables, i. e. uncertainty of life to find a sum of Rs. 78,464/-as the loss is an exaggeration. The amount that can be awarded is only what is shown above, namely Rs. 25200/-. 12. There is one other head for which compensation is claimed and that is for pain and suffering. This is a non-pecuniary loss incapable of exact estimation, its assessment must necessarily be a matter of degree based on the facts of each case. It is not based on an attempt to fix the price which the injured party would have agreed to receive. It is a case where the plaintiff has realised the severity of the injuries and the extent to which they have reduced him permanently to a lower level of activity. He has suffered a mental anguish. The lower court has awarded a sum of Rs. 3,000/-under this head though Rs. 5000/-was claimed by the plaintiff. The plaintiff was unconscious for a period of 17 days, he sustained very severe head injuries and had experienced excruciating pain and suffering as a result of the accident. Therefore the amount of Rs. 3,000/-awarded by the lower court cannot be stated to be excessive on this account We sustain that amount. The aggregate of the above three sums will carry interest at 6% from the date of suit till realisation. 13. The third defendant, 2nd respondent to this appeal, is under the policy of insurance liable to pay Rs. 20,000/- There was no reason why this amount should not have been deposited or paid by the third defendant atleast when the lower court decided the case on 1-4-1977. The plaintiff can recover Rs. 20,000/-with interest at 6% from 1-4-1977 till payment from the third defendant and the balance alone from defendants 1 and 2. 14. In the result the appeal is partly allowed. The decree of the lower court is modified as follows: The plaintiff is given a decree to recover Rs. 29, 200/- with interest at 6% from the date of suit till realisation, from defendants 1 and 2. Out of this amount Rs. 20,000/- with interest at 6% from 1-4-77 will be realised from the 3rd defendant and the balance from defendants 1 and 2. 29, 200/- with interest at 6% from the date of suit till realisation, from defendants 1 and 2. Out of this amount Rs. 20,000/- with interest at 6% from 1-4-77 will be realised from the 3rd defendant and the balance from defendants 1 and 2. The plaintiff-respondent will also get cost in the lower court and here proportionate to the principal sum now awarded. The appellants will suffer their costs throughout. Partly Allowed.