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Judgment
S. Vimala, J.—Who is the tort-feasor? Whether the driver/vicariously the owner of the vehicle (lorry) bearing Registration No. TSL 2536, i.e., the First Respondent or the deceased himself, who was the driver of the van, bearing Registration No. TN-02-C-4572 and consequently the owner, the Third Respondent, is the tort-feasor?
If the deceased himself had been the tort-feasor, whether the Claimants are entitled to claim Compensation only under the provisions of Workmen Compensation Act or Motor Vehicles Act? Even assuming that the deceased is entitled to claim Compensation only under W.C. Act, whether the claim can be adjudicated only by the authorities under the W.C. Act or by the Authorities under the M.V. Act also?
Whether the deceased was guilty of contributory negligence and if so, to what extent?
On 16.01.1998, when the deceased was driving the Van bearing Registration No. TN-02-C-4572, (opposite to G.B. Complex, Melmaruvathur) from Chennai to Pondicherry, the Lorry bearing Registration No. TSL-2536, which came from Trichy to Chennai, was driving in a rash and negligent manner and hit against the Van causing injuries to the deceased and ultimately, causing his death.
4.1. The deceased was a Heavy Vehicle Driver employed under AMA Enterprises, Mount Road, Chennai, and was earning a sum of Rs. 4,000/- per month. The Legal Representatives made a claim for a sum of Rs. 5,00,000/- and the Tribunal awarded a sum of Rs. 3,36,000/- (Rs. 2,000 x 13 x 12).
Loss of Dependency
-
Rs. 3,12,000/-
Loss of Consortium
-
Rs. 6,000/-
Loss of Expectation of Life
-
Rs. 7,000/-
Damages (Cloth)
-
Rs. 1,000/-
Mental Agony
-
Rs. 5,000/-
Pain and Suffering
-
Rs. 5,000/-
Total
-
Rs. 3,36,000/-
4.2. The Tribunal awarded the Compensation on the finding that the deceased was not a tort-feasor and the driver of the Lorry alone was negligent in causing the accident and therefore, the Insurance Company/Appellant should pay the Compensation. This finding, on negligence, is under challenge in this Appeal by the Insurance Company.
The main contention of the learned Counsel for the Appellant is that the victim alone was the tort-feasor and when the victim invited his own death for his own fault, as the driver of the Van, nobody can be made responsible, i.e. neither the owner nor the Insurer of the alleged offending vehicle (Lorry). The further contention is that, if at all, the claim is maintainable, it is maintainable only under the provisions of, (a) Workmen Compensation Act, and (b) only as against his own Employer, namely, the owner of the vehicle.
5.1. It is pointed out by the learned Counsel for the Appellant that the claimants themselves have admitted that the deceased alone was responsible for the accident, by impleading the owner and Insurer of the vehicle, which was driven by the deceased and the insured and the Insurance Company (of the tort-feasors) have also admitted that the deceased himself was responsible for the accident and therefore, Appellant has no liability/responsibility to pay any Compensation.
What is the admission, what is the value to be attached to the admission and what are the circumstances under which admission is made and the implication of the admission are all matters to be considered.
6.1. No doubt, the owner and Insurer of the vehicle (which was driven by the deceased) has been impleaded as Respondents 3 & 4. But the reason as to why they were impleaded has been described in Column No. 23 of the Petition. The relevant averments run thus:
"The driver of the Lorry is solely responsible for the accident. The deceased was not responsible for the accident. The Third Respondent is the owner of the Van Reg. No. TN-02-C-4572 and the Fourth Respondent is the Insurer of the Van and the Third and Fourth Respondents are added as necessary parties in the above matter by way of abundant caution for liability, if any against them."
6.2. Whether this could be construed as an admission amounting to admitting the negligence on the part of the deceased himself? In other words, whether the admission is absolute, unqualified and unequivocal. Only if so, the Court can take that as admission. If the admission is qualified, then it cannot be deemed to be an admission. It would be relevant to see the scope, nature and admissibility of admissions made in judicial pleadings.
6.3. An admission is defined in Section 17 of the Indian Evidence Act, as a statement (oral or documentary) made by a party or by a person connected with him in any of the ways described in Sections 18 to 23 under certain circumstances, which suggest an inference as to, any fact in issue or relevant fact. This Section refers to matters of fact only. There may be denial of a fact or admission of a fact and it may be addressed to anyone.
6.4. What a party himself admits to be true may reasonably be presumed to be so, unless it is satisfactorily explained or successfully withdrawn and so long as it do not operate as estoppel, persons making admissions are at liberty to contradict them or show them that they are untrue or mistaken or made under a misapprehension.
6.5. Facts admitted at the hearing or which the party agree to admit by writing or which by rules of pleading are deemed to have been admitted (Order 8, Rule 5, CPC) need not be proved, but the Court may require such facts to be proved by other evidence.
6.6. An admission, if clearly and unequivocally made is the best evidence and, though not conclusive, shift the onus on to the maker. It has been held in a recent Supreme Court case that an admission is the best piece of evidence against the person making it. However, it is open to the person making admission to show why admission is not to be acted upon Delhi Transport Corporation v. Shyam Lal, AIR 2004 SC 427.
6.7. Admissions on point of law are generally excluded and are not binding. Admission must be clear if they are to be used against the person making it. They are substantive evidence by themselves, in view of Sections 17 & 21 of the Indian Evidence Act, though they are not conclusive proof of matters admitted.
6.8. Taylor says, "Admissions and confessions are usually treated as exceptions to the hearsay rule. Considering them as declaration against interest, and therefore, probably true".
6.9. In order to constitute admission in law, the statement should be ex facie unequivocal and categorical and not vague.
6.10. Admissions in pleadings or judicial admissions stand on a higher footing than evidentiary admissions. The former are fully binding on the maker and constitutes a waiver of proof whereas the latter are not conclusive and can be shown to be wrong (Nagindas v. Dalpatram, AIR 1974 SC 471). Admissions in pleadings or judicial admissions by themselves can be made the foundation of the rights of the parties (Satish Mohan Bindal v. State of U.P., AIR 1986 All 126, 128 : 1985 All. CJ 507).
Tested on the touch stone of the principles highlighted above it is clear that it is neither an admission on facts, but admission on the question of law. Even assuming that it is admission on facts, then it is not an unequivocal admission and at the most, it could only be an implied admission, but not with reference to negligence, but with reference to liability provided if something else is established.
7.1. In the light of the background of the facts, if at all, even if the Claimants do not lead any evidence and if the Respondents are not able to establish that the deceased was at fault, then the Claimants may maintain the claim under Section 163-A of the Motor Vehicles Act. That would have made the Claimants to implead Respondents 3 & 4. Therefore, the mere impleadment of Respondents 3 & 4 would not lead to a conclusion that the deceased himself was negligent.
Then the averments made in the Counter filed by the Fourth Respondent have to be considered. The sum and substance of the averments made in the Counter (in Paragraphs 4 & 5) would show that those averments are made not admitting anything, but assuming the extreme. It is made by way of alternative plea. On facts, if the negligence on the part of the tort-feasor, namely, the First Respondent, is not proved and in case, the negligence of the deceased is also proved, only then, the question of the Claimants being out of Court would be a question. Therefore, the averments made in Paragraphs 4 & 5 of the Counter will not non-suit them.
The specific contention of the learned Counsel for the Appellant is that Exs. R-1 to R-3, i.e., copy of the First Information Report, Rough Sketch and Charge-sheet would prove that the deceased alone was negligent.
9.1. This aspect of the matter has been dealt with by the Tribunal in Paragraph-7 of the Judgment. Rightly the Tribunal has pointed out that, (a) the author of the First Information Report has not been examined; (b) the Charge-sheet filed did not contain the statement of witnesses; (c) the driver of the First Respondent has not been examined before the Tribunal.
9.2. It will be useful to quote the decision of this Court wherein it was held that the party in possession of best evidence is bound to adduce the same before the Court and the Court can draw adverse inference, if the best evidence is withheld. This is supported by the decision reported in Ramachandran v. Valliammal, 1992 (1) MLJ 188:
"It is also well settled that a party, who is in possession of best evidence and a party, who is the best person to give evidence on certain matters should enter the witness box and place the facts before the Court and in the event of his failure to do so, the Court is bound to draw an adverse inference against him."
9.3. The practise of withholding the best evidence and the consequences of the best evidence not being produced has been dealt with in the decision reported in Sardar Gurbaksh Singh v. Gurdial Singh, 1927 (29) Bom. LR 1392:
"28. Notice has frequently been taken by this Board of this style of procedure. It sometimes takes the form of a manoeuvre under which Counsel does not call his own client, who is an essential witness, but endeavours to force the other party to call him, and so suffer the discomfiture of having him treated as his, the other party''s, own witness.
This is thought to be clever, but it is a bad and degrading practise. Lord Atkinson dealt with the subject in Lal Kunwar v. Chiranji Lal, 1909 L.R. 37 : I.A. 1 : S.C. 12 Bom. L.R. 244 calling it "a vicious practise, unworthy of a high-toned or reputable system of advocacy."
9.4. Therefore, withholding of the best evidence by non-examination of the driver of the Lorry would estop the insured and the Insurer to contend that the driver of the Lorry was not at fault and that it was only the driver of the Van, who was at fault.
Much has been commented upon the evidence of PW 2, by the learned Counsel for the Appellant. But those comments could not be accepted, in the light of the documentary evidence presented before the Court and the conduct of Respondents 3 & 4 in withholding the best evidence before the Court. Therefore, the Theory of Exclusive Negligence on the part of the deceased and the contributory negligence on the part of the deceased have no basis and those contentions are rejected.
Learned Counsel for the Appellant pointed out that the Claimants need not take the trouble of again approaching the Authorities under the W.C. Act and their claim can be adjudicated by this Court and so contending, the decision reported in Oriental Insurance Co. Ltd. v. Kaliya Pillai, 2002 (4) CTC 469 is relied upon. But, as the liability has been found to be on the part of the insured and the Insurer of the Lorry, this decision is not applicable to the factual scenario.
11.1. Another decision is the one reported in T.O. Anthony v. Karvannan, 2008 ACJ 1169, which is relied upon, in order to support the contention that, at least the Compensation must be reduced in proportion to the contributory negligence of the deceased. This is also not applicable to the facts proved in this case.
For the foregoing reasons, the Civil Miscellaneous Appeal is liable to the dismissed. In the result, this Civil Miscellaneous Appeal is dismissed. No costs. Consequently, the connected MP is closed.