Jagan Nath vs Ganesh and Others

G.C. Mital, J.—Anita, minor daughter of Jagan Nath, got the femur bone of her left leg fractured, on 5th October, 1972, due to an accident caused with truck No. HRH 4896, which is admittedly owned by Rameshwar Dayal Respondent and at the time of accident was being driven by Ganesh Respondent. In the claim application made to the Motor Accidents Claims Tribunal, Hissar, it was alleged that at about 8.45 a.m. Anita, aged 13 years, was going to the F.C. College, Hissar, from her house situated in Railway Colony on a bicycle and when she reached near the Parkview Hotel between Patel Park and Lajpat Rai Park, truck No. HRH 4896 came from Kath Mandi side at a fast speed. Due to rash and negligent driving of the truck, it took a. sudden turn towards its right side without any signal and the front bumper of the truck hit the injured with the result that her left leg was seriously fractured. The defence of the driver was that the accident was caused due to the negligence of the girl herself and that he was not driving the truck either negligently or rashly and neither he nor the owner of the truck were liable to pay any compensation. The truck was earlier owned by Amir Chand Respondent and while Amir Chand was the owner of the truck, it was insured with the New Great Insurance Company Ltd, but after Amir Chand had transferred the truck to Rameshwar Dayal, it was not insured and, therefore, the stand of Amir Chand and the insurance company was that if at all it would be Rameshwar Dayal and Ganesh who would be liable for compensation to be paid to the minor.

On the contest of the parties, the following issues; were framed:

(1) Whether the accident took place due to the negligence of Ganesh driver-Respondent No. 1, while driving the truck No. HRH 4896?

(2) To what amount of compensation is the Petitioner entitled and from whom ?

(3) Whether the insurance company Respondent No. 4 is entitled to special costs and from whom ?

(4) Relief.

The Tribunal, by award dated 30th April, 1975, came to the conclusion that the accident did not take place due to the negligence of Ganesh driver but under issue No. 2 came the conclusion that if it is found that Ganesh was negligent then the minor would be entitled to a compensation of Rs. 20,000/- from Rameshwar Dayal and Ganesh, their liability being joint and several. Issue No. 3 was decided against the insurance company with the result that the claim petition was dismissed on account of the finding recorded under issue No. 1. The claimant has come up in appeal to this Court.

As regards the injuries to Anita, it has come in the statement of Dr. B.M. Banerji (A.W. 8), A.M.O., Railway Hospital, Central New Delhi that Anita was admitted in the Hospital on 10th November, 1972, as an old case of fracture of femur having undergone a nailing operation and remained in that hospital upto 8th of August, 1973, and thereafter, she was again admitted on 19th September, 1974, and was discharged on 27th September 1974. Dr. Banerji testified that there was permanent disability caused to Anita due to the leg injury.

This brings me to the consideration of issue No. 1. The Tribunal decided this issue against the claimant solely on the basis of her statement made to Pokhar Dass, AS.I., which has been exhibited as A.W. 5/1. A reading of A.W. 5/1 does go to show that the driver of the truck was not guilty of the negligence but the question which remains for consideration is whether the previous statement, Exhibit A.W. 5/1, can be used against Anita claimant in this case, in view of Section 145 of the Evidence Act The counsel for the claimant has strenuously urged that the previous statement Exhibit A.W. 5/1 cannot be used against her in view of the two Supreme Court decisions, reported in Major Som Nath Vs. Union of India (UOI) and Another, and Sita Ram Bhau Patil Vs. Ramchandra Nago Patil (Dead) by Lrs. and Another, . On the other hand, the counsel for the Respondents has relied upon another Supreme Court decision reported in Bharat Singh and Another Vs. Bhagirathi, .

After hearing the counsel for the parties as to the admissibility of exhibit A.W. 5/1 as the previous statement of Anita I find that the contention of the counsel for the claimant-Appellant is well founded, A reading of Section 145 of the Evidence Act, would show that if a witness makes a statement contradictory to his/her earlier statement, then the earlier statement would become evidence only if the attention of the witness is drawn to those parts of the earlier statement, with which the witness is sought to be contradicted and if this is not done then the earlier statement will not be used as evidence. In the present case, a reading of her statement would show that in her examination-in-chief she clearly stated that Ganesh was driving the offending vehicle negligently and rashly, he did not give any horn, he was shown the hand as an alarm to stop the vehicle but still he did not care for that and ultimately the front wheel of the truck struck against her and she fell down and her leg was injured. She also stated in her examination-in-chief that she narrated the whole story, which she stated in Court, to the police and the police obtained her signatures on some writing but she did not know what was written therein because it was not read over to her. In cross-examination, she stated that the front portion of the truck had struck against her. She admitted that she made a statement before the police but could not say whether it was made to Pokhar Dass, A.S.I. The relevant portion of her statement, which would be material for considering the point in dispute may be reproduced:

It is correct that I am well conversant with Hindi language. My statement is exhibit A.W. 5/1. It bears my signatures and it was recorded by the police officer.

A reading of the aforesaid statement does go to show that Anita admitted having made a statement to the police and also admitted that the exhibit A.W. 5/1 was that statement but the requirement of Section 145 of the Evidence Act is that the portion of her previous statement by which she is being contradicted must b" put to her and unless that is done, the previous statement would not be read in evidence. This has not been done in this case. In Major Som Nath v. Union of India AIR l971 S.C. 1910 the witness had admitted having made an earlier statement and having signed the same but the relevant passages of the earlier statement were not put to him and it was ruled as under:

They can at best be used to contradict in the cross-examination of such a witness when he gives evidence at the trial (Court) of the accused in the manner provided u/s 145 of the Evidence Act. If it is intended to contradict the witness by the writing, the attention of the witness should be called before the writing can be proved to these parts of it which are to be used for the purpose of contradicting him. If this is not done the evidence of the witnesses cannot be assailed in respect of these statements by merely proving that the witness had signed the document. When the witness are contradicted by their previous statements in the manner aforesaid, then that part of the statements which has been put to the witness will be considered along with the evidence to assess the worth of the witness in determining his veracity. The whole of the previous statement however cannot be treated as substantive evidence.

A reading of the aforesaid passage clearly goes to show that the parts of the previous statement which are sought to be used must be put to the witness for contradicting him and only those parts of the previous statement would become substantive evidence and if that is not done then the previous statement would be of no use. Therefore, mere admission of having made and signed the earlier statement would not amount to satisfying the crucial test laid down in Section 145 of the Evidence Act.

In Bharat Singh and Another Vs. Bhagirathi, it was ruled as follows:

the general principle is that before any person is to be faced with any statement he should be given an opportunity to see that statement and to answer the same. The specific statutory provision is contained in Section 145 of the Indian Evidence Act. that a witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him or being proved, but if it is intended to contradict him by the writing his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. Therefore, a mere proof of admission, after the person whose admission it is alleged to be has concluded his evidence, will be of no avail and cannot be utilized against him.

In Bharat Singh and Another Vs. Bhagirathi, , the opposite side had relied on Bharat Singh v. Mst. Bhagirathi''s case AIR 1915 P.C. 7 for the proposition that the proof of an admission makes the admission a substantive piece of evidence and would be admissible against the party and need not be put to the witness. This proposition of law was not accepted by the learned Judges deciding Bharat Singh and Another Vs. Bhagirathi, case which is clear from a reading of paras 15, 16 of the report, and the law laid down by the Privy Counsel in Bal Gangadhar Tilak v. Srinivas Pandit AIR 1915 P.C. 7 was reiterated. Therefore, the Supreme Court decision in Bharat Singh and Another Vs. Bhagirathi, stands sufficiently explained in Sita Ram Bhau Patil Vs. Ramchandra Nago Patil (Dead) by Lrs. and Another, and no further discussion on this matter is needed.

For the reasons recorded above, I concluded that since the relevant passages from the previous statement exhibit A.W. 5/1 were not put to Anita when she appeared as A.W. the same cannot be used against her and the Learned Tribunal was in error in treating the previous statement exhibit A.W. 5/1 as her admission and in deciding the case against her on that basis.

Once the document exhibit A.W. 5/1 is ignored out of consideration, we are left with the statement of Anita as A.W. 5 and of two eye-witnesses, namely, Ram Kumar A.W. 6 and Padam Singh A.W. 7. The Tribunal discarded the statements of Ram Kumar and Padam Singh on the ground that they were in the service of the Railway where the father of Anita was employed and for that reason they may not be truthful witnesses Both these witnesses stood the test of cross-examination and nothing came out which could discredit them to show that they were not near the place of accident and had not seen the occurrence. A reading of their statements goes to show that they are truthful witnesses and had seen the occurrence and were deposing correctly. Moreover, the statement of Anita alone deserves to be believed as the relevant fact stated by her and by the driver are not at variance except that the driver is wanting to put the blame on Anita whereas Anita is wanting to put the blame on the driver of the truck.

The facts of this case are very eloquent. Kath Mandi is very close to the place of occurrence. According to the driver the truck had started from Kath Mandi and after taking a turn was going towards the railway station and Anita was coming from the opposite direction. In such a situation the truck should not have been at a high speed and if that had been so, there would have been no cause for the accident. But the statements of the witnesses go to show that the truck was being driven at a high speed and as such the driver could not control it and when it swerved towards its right, the truck struck against Anita who was coming from the opposite direction with the result that she fell down and fractured her left femur. These facts clearly go to show that the only view possible is that the truck was being driven rashly and negligently due to which Anita received serious injuries on her left leg on account of which she had to remain under treatment for one month at Hissar and for nine months in the Railway Hospital at Delhi and once again for about ten days later on. Dr. Banerji as A.W. 8 has opined that there is a permanent disability caused to her left leg.

This brings me to the consideration of the evidence produced by the owner and driver of the truck- In order to appreciate the evidence, it would be useful to notice the pleas taken in the written statement by the owner of the truck as no written statement has been filed by the driver of the truck. The owner has completely denied the accident with the truck although has admitted that Anita had sustained injuries on 5th October, 1972. The first witness produced is Goverdhan Dass, R.W. 5. A reading of his statement shows that he had not seen the occurrence himself and only on enquiry he was told that the girl had received injuries by striking against the truck. The next witness is Nanak Ram, R.W. 6. The story propounded by this witness is that two boys were misbehaving with the injured and when she came near the truck, she fell towards the side of the truck and got the injuries. Ganesh, driver, appeared as R.W. 7 and stated that he had parked the truck after taking the turn with a view to talk to a labourer who had come from his village, whose name he did not know. The injured was coming on a cycle from the opposite direction and two boys were coming from behind the truck and gave jerks to their cycles with a view to tease the girl with the result that the girl fell towards her right-hand-side. A reading of the aforesaid evidence would show that the same is beyond the pleadings as no such plea was taken that any boys were teasing the injured, that the truck was not in motion at the time of the accident. The evidence produced is clearly an after thought and the statements of none of the aforesaid witnesses deserve to be relied upon.

For the reasons recorded above, we reverse the finding of the learned Tribunal under issue No. 1 and decide it in favour of Anita and against the Respondents and hold that the driver of the truck was guilty of rash and negligent driving due to which Anita received the injuries.

Coming to issue No. 2, no reasonable argument has been raised on behalf of the Respondents to take a different view from as has been found by the learned Tribunal in coming to the conclusion that Anita is entitled to the compensation of Rs. 20,000/-. Accordingly, accepting the finding of the Tribunal under issue No. 2,1 hold that Anita claimant would be entitled to Rs. 20,000/- as compensation.

The finding of the learned Tribunal under issue No. 3, has not been seriously challenged before me in view of the decision reported as Des Raj Pahawa and Anr. v. The Concord of India Insurance Co. Ltd. Calcutta AIR 1951 P&H 114; Alwar Motor Association (Pvt.) Ltd., Alwar v. Hazari Lal and Ors. 1958-65 A.CJ. 542 (Punjab) and Oriental Fire and General Insurance Co. Ltd. v. Meena Sharma and Ors. 1975 A.C.J. 335 (Pb. and Hya.) wherein it has been held that the insurance company is to reimburse the insured only and in this case it is disputed that the insured was Amir Chand and not Rameshwar Dayal whereas the truck was being owned at the time of accident by Rameshwar Dayal. Therefore, the finding of the learned Tribunal under issue No. 3 is upheld.

Lastly, it was faintly urged on behalf of the owner and the driver of the truck that the claim application should have been made by Anita whereas it has been made by Jagan Nath, her father. It is true that the application has been filed by Jagan Nath, but it is on behalf of Anita for her benefit alone. No such objection was taken either in the written statement or at the time of issue or arguments before the Tribunal. If at a proper stage an objection had been taken, this could have been cured by adding the name of Anita but it is not such an irregularity which will vitiate the proceedings, because I am making it clear in this award that the compensation will be paid to Anita and such a technical objection will not be allowed to be raised at this stage.

For the reasons recorded above, this appeal is allowed, the order of the Motor Accidents Claims Tribunal dated 30th April, 1975, is modified and Anita claimant is awarded compensation of Rs. 20,000/- along with interest at the rate of 6 per cent per annum, to be calculated from the date of application till payment against Rameshwar Dayal and Ganesh Respondents only who shall be jointly and severally liable. The claimant would also be entitled to the costs of these proceedings. Counsel''s fee being Rs. 100/-.