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Jagan Nath v. Ganesh And Others
Factual and Procedural Background
On 5 October 1972, Anita, a 13-year-old minor daughter of Jagan Nath, sustained a fracture to the femur of her left leg in an accident involving truck No. HRH 4896. At the time of the accident the truck was admittedly owned by respondent Rameshwar Dayal and was being driven by respondent Ganesh. Anita was riding a bicycle from her house in Railway Colony to F.C. College, Hissar, and the accident occurred near the Parkview Hotel between Patel Park and Lajpat Rai Park. It was alleged in the claim application before the Motor Accidents Claims Tribunal, Hissar, that the truck, coming from Kath Mandi at high speed, swerved to the right without signaling and its front bumper struck Anita causing the fracture.
The driver and owner defended on the basis that the accident was caused by the negligence of Anita herself and denied rash or negligent driving on the part of the driver. There was a dispute about insurance: the truck had previously been owned by Amir Chand and insured with New Great Insurance Company Ltd.; after transfer to Rameshwar Dayal the truck was not insured. Amir Chand and the insurance company contended that if any liability existed it would be Rameshwar Dayal and Ganesh who would be liable.
On the contest of parties the Tribunal framed four issues and, by an award dated 30 April 1975, held under Issue No. 1 that Ganesh was not negligent, while under Issue No. 2 the Tribunal stated that if Ganesh were found negligent the claimant would be entitled to Rs. 20,000 jointly and severally from Rameshwar Dayal and Ganesh; Issue No. 3 was decided against the insurance company. The claimant (Anita, through her father Jagan Nath) appealed to this Court. Medical evidence (Dr. B.M. Banerji, A.W. 8) established that Anita underwent treatment and suffered permanent disability of the left leg.
Legal Issues Presented
- Whether the accident took place due to the negligence of Ganesh (driver-respondent No. 1) while driving truck No. HRH 4896?
- To what amount of compensation is the petitioner entitled and from whom?
- Whether the insurance company (respondent No. 4) is entitled to special costs and from whom?
- Relief (ancillary procedural and substantive relief arising from determination of the above issues).
Arguments of the Parties
Claimant / Appellant (Anita, through her counsel)
- Contended that the previous statement exhibited as A.W. 5/1 (a police-recorded statement) could not be used against Anita in view of section 145 of the Indian Evidence Act.
- Relied on Supreme Court authorities (Major Som Nath v. Union of India and Sita Ram Bhau Patil v. Ram Chandra Nago Patii) for the proposition that unless the particular portions of a prior written statement intended to be used for contradiction are put to the witness, the prior statement cannot be proved against her as substantive evidence.
Respondents (Owner Rameshwar Dayal, Driver Ganesh, and others; and the insurance side)
- The driver/respondents maintained that the accident resulted from Anita's own negligence and denied rash/negligent driving by the driver.
- The owner/insurance side argued that the truck was not insured at the time of the accident (ownership having been transferred) and that liability—if any—would lie with Rameshwar Dayal and Ganesh, not with Amir Chand or the insurance company. The insurance company and Amir Chand therefore disclaimed liability.
- Respondents relied upon Bharat Singh v. Mst. Bhagirathi for the proposition that proof of an admission (the prior statement) can make it substantive evidence without the need to put specific passages to the witness.
- The owner and driver also raised a procedural/technical objection that the claim application had been presented by Anita's father (Jagan Nath) rather than by Anita herself.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Major Som Nath v. Union of India, 1971 2 SCC 387 | That a previous written statement signed by a witness can only be used to contradict the witness if the specific parts relied upon are brought to the witness' attention in cross-examination as required by section 145, and that the whole previous statement cannot be treated as substantive evidence unless the statutory procedure is followed. | The Court applied this principle to hold that exhibit A.W. 5/1 could not be used against Anita because the relevant passages of the earlier statement were not put to her in the statutory manner; the Tribunal erred in accepting the prior statement as an admission without following section 145. |
| Sita Ram Bhau Patil v. Ram Chandra Nago Patii, 1977 2 SCC 49 | Reiterated the general principle and statutory requirement of section 145: before using a prior written statement to contradict a witness, the witness must be given an opportunity to see and answer the specific parts relied upon; mere proof of a prior admission after the witness has concluded his evidence is of no avail. | The Court relied on this decision to reinforce that exhibit A.W. 5/1 could not be proved against Anita in the absence of putting its relevant parts to her; Sita Ram Bhau Patil was treated as explaining and qualifying the position taken in Bharat Singh. |
| Bharat Singh v. Mst. Bhagirathi, A.I.R. 1966 S.C. 405 | Advanced the proposition (as relied upon by respondents) that proof of an admission can render the admission substantive evidence and need not necessarily be put to the witness in the manner later stressed by section 145 (as interpreted by some decisions). | The Court noted that this proposition was relied upon by respondents but observed that Sita Ram Bhau Patil did not accept that proposition unqualifiedly and that Bharat Singh's decision stands explained by later authority; the Court did not accept Bharat Singh as permitting proof of a prior statement as substantive evidence without complying with section 145's requirements. |
| Bal Gangadhar Tilak v. Srinivas Pandit (Privy Council decision, cited in Sita Ram Bhau Patil) | Earlier pronouncement on principles relating to proof of admissions/previous statements (reiterated in Sita Ram Bhau Patil). | The Court noted that the law as stated by the Privy Council in this case was reiterated in Sita Ram Bhau Patil and used that reasoning to support the exclusion of exhibit A.W. 5/1 as substantive evidence. |
| Des Raj Pahawa v. The Concord of India Insurance Co. Ltd. (and allied authorities: Alwar Motor Association (Pvt.) Ltd., Alwar v. Hazari Lal; Oriental Fire & General Insurance Co. Ltd. v. Meena Sharma) | That the insurance company is to reimburse the insured only (principle on the scope of insurer liability and reimbursement). | The Court relied on these authorities in upholding the Tribunal's finding under Issue No. 3 that the insurance company was not liable where the insured was disputed and the truck's ownership at the time of the accident was contested; the Tribunal's finding on the insurance company's position was maintained. |
Court's Reasoning and Analysis
The Court proceeded issue by issue, beginning with Issue No. 1 (negligence). The Tribunal had relied upon exhibit A.W. 5/1 (a previous police-recorded statement said to bear Anita's signature) to reject the claimant's case. The Court examined the admissibility of that prior statement in light of section 145 of the Indian Evidence Act and the cited Supreme Court authorities.
The Court explained the statutory requirement of section 145: if a witness makes a statement contradictory to an earlier written statement, that earlier statement can become evidence only if the specific parts of the earlier writing relied upon for contradiction are pointed out to the witness. Mere proof that the witness signed a document is not sufficient to treat the earlier writing as substantive evidence. The Court relied on Major Som Nath and Sita Ram Bhau Patil to show that unless the relevant passages were put to the witness in cross-examination as required, the prior statement could not be used to contradict and could not be admitted as substantive evidence.
Applying this to the facts, the Court found that although Anita admitted making and signing a prior statement and admitted knowledge of Hindi, the prosecution/respondents did not comply with the requirement of putting the pertinent portions of exhibit A.W. 5/1 to her in the statutory manner. Consequently, the Court held that exhibit A.W. 5/1 could not be used against Anita and that the Tribunal erred in treating it as an admission and dismissing the claim on that basis.
With exhibit A.W. 5/1 excluded, the Court evaluated the remaining direct evidence: Anita's testimony in examination-in-chief and the evidence of two independent eyewitnesses (Ram Kumar A.W. 6 and Padam Singh A.W. 7), as well as medical evidence (Dr. B.M. Banerji A.W. 8). The Court found the eyewitnesses credible: they survived cross-examination without any material impeachment, and their accounts supported Anita's version that the truck was being driven at a high speed, swerved to the right and struck Anita. The Court rejected the respondents' witnesses (R.W. 5, R.W. 6 and Ganesh as R.W. 7) as unreliable and as presenting afterthought defenses not pleaded (e.g., allegation of boys teasing the injured, or that the truck was stationary).
On the facts established by the credible evidence, the Court concluded that Ganesh was guilty of rash and negligent driving which caused Anita's injury. The Court accepted the Tribunal's finding on quantum under Issue No. 2 (that Anita was entitled to Rs. 20,000) and accepted the Tribunal's conclusion under Issue No. 3 (that the insurance company was not liable), relying on the line of authority that an insurer reimburses only the insured and noting the dispute over the identity of the insured at the time of the accident.
The Court also addressed the procedural point about the claim being presented by Anita's father: it observed that the application was on behalf of Anita and no objection to the form of the application had been raised at trial; even if raised earlier the defect could have been cured by adding Anita's name; the objection was not of such gravity as to vitiate the proceedings. The Court therefore proceeded to dispose of the appeal on the merits.
Holding and Implications
Holding: The appeal was allowed. The Court reversed the Tribunal's finding under Issue No. 1 and held that the driver Ganesh was guilty of rash and negligent driving. The Tribunal's finding on quantum was accepted. The Court therefore modified the Tribunal's order dated 30 April 1975 and awarded the claimant Anita Rs. 20,000 as compensation, with interest at the rate of 6% per annum from the date of application until payment, to be paid by Rameshwar Dayal and Ganesh who are jointly and severally liable. The claimant was also awarded costs of the proceedings and counsel's fee of Rs. 100.
Implications: The direct consequence is that Anita, the injured minor, is awarded Rs. 20,000 plus interest and costs, to be recovered jointly and severally from the owner (Rameshwar Dayal) and the driver (Ganesh). The Court's decision reinforces the application of section 145 of the Evidence Act and the authorities cited (Major Som Nath; Sita Ram Bhau Patil) concerning the limited circumstances in which a prior written statement can be used to contradict a witness. The opinion did not purport to lay down a new rule of law beyond applying existing authorities to the facts of this case; its practical effect is the reversal of the Tribunal on liability and the award of compensation to the claimant.
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 the 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.
2. 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.
3. 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.
4. 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, A.S.L, 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 v. Union of India . 1971 2 SCC 387, and Sita Ram Bhau Patil v. Ram Chandra Nago Patii . 1977 2 SCC 49. On the other hand, the counsel for the respondents has relied upon another Supreme Court decision reported in Bharat Singh v. Mst. Bhagirathi . A.I.R 1966 S.C 405..
5. After hearing the counsel for the parties as to the admissibility of exhibit A.W 5/1 as the previous statement of Anita 1 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 Pokbar 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.”
6. 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 be 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 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 under section 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.”
7. A reading of the aforesaid passage dearly 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.
8. In Sita Ram Bhau Patil's case 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 utilised against him.”
9. In Sita Ram Bhau Patil's case, the opposite side had relied on Bharat Singh v. Mst. Bhagirathi's case 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 Sita Ram Bhau Patips 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, was reiterated. Therefore, the Supreme Court decision in Bharat Singh's case stands sufficiently explained in Sita Ram's case and no further discussion on this matter is needed.
10. For the reasons recorded above, 1 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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 coining 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.
16. 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 v. The Concord of India Insurance Co. Ltd. Calcutta, Alwar Motor Association (Pvt.) Ltd., Alwar v. Hazari Lal, and Oriental Fire & General Insurance Co. Ltd. v. Meena Sharma, 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.
17. 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 calcutated 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/-.
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