IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.405 of 1993 (O&M)
Date of decision:30.06.2011
Devinder Singh and another ...Appellants
versus
Harminder Singh and another ....Respondents
II. FAO No.1258 of 1993 (O&M)
Harminder Singh ...Appellant
versus
Devinder Singh and others ....Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. M.L. Sarin, Senior Advocate, with Mr. Nitin Sarin,
Advocate and Ms. Alka Sarin, Advocate, for the appellants
in FAO No.405 of 1993 and for respondents in FAO
No.1258 of 1993.
Mr. Anupam Gupta, Advocate, and Mr. Gaurav Goyal,
Advocate, for the appellant in FAO No.1258 of 1993 and for
respondents in FAO No.405 of 1993.
----
1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ? Yes.
----
K.Kannan, J.
1. Scope of appeals
1. Both the appeals arise out of the same award, the former is
by the owner of the vehicle denying liability and quantum and the latter
is by the claimant seeking for enhancement of compensation.
FAO No.405 of 1993 (O&M) -2-
II. Circumstances requiring additional evidence and the court’s
power under section 165 Evidence Act
2. The claim was for injuries sustained in a motor accident
involving an alleged collision of a motorcycle with the bus owned by an
educational institution. The accident was said to have taken place on
26.04.1989, but the FIR relating to the same was made only on
09.08.1989. The vehicle itself had been seized by the police only
subsequently and released on supardari to the owner of the bus. Before
the arguments of the respective counsel got under way, I had asked the
counsel for the claimant to sustain how the case could merely depend on
oral evidence when there seemed such a long delay which was unusual if
the accident had been true. The counsel appearing on behalf of the
claimant made a fervent plea for summoning the criminal court records
for doing complete justice and contended that the claimant was not after
all pursuing remedy against the owner of the bus and the insurer by
willfully imagining that the said bus was involved in the accident. I,
therefore, passed an order on 09.03.2011, directing the criminal court
records in FIR No.70 dated 09.08.1989 to be sent for. On receiving the
criminal court records, the respective counsel sought for time for
inspection of record on 25.03.2011 and made formal opening of the
arguments when the counsel for the claimant pointed out to a document
found in the criminal court records i.e. a letter of authorization given by
the Principal of St. Xavier’s School, which was the owner of the bus as
relevant for the purpose of the case. The letter purported to give authority
to the transport-in-charge of the school to get the bus released from the
police and “negotiate with the concerning party”. I was of the view that
FAO No.405 of 1993 (O&M) -3-
the said letter had bearing to the facts involved in the case about the
involvement or otherwise of the bus. Since the document itself had not
been exhibited before Court as evidence, but it was part of the criminal
court records, I passed an elaborate interim order on 05.04.2011,
summoning the author of the letter, the transport- in-charge and the
driver of the bus by invoking power under Section 165 of the Indian
Evidence Act. While referring to the text of Section 165, I had observed,
“……Learned senior counsel appearing for the appellant in
FAO No.405 of 1993 raises very strong objection to the
reliance of these documents by the counsel appearing on
behalf of the respondent. It is contended that even in the
appeal filed by the respondent, there is no reference relating
to the above documents. The powers of any Court and more
particularly the High Court are not fettered by any technical
objection, if the primary consideration is to secure the truth
and do justice for the purpose. These documents which are
sought to be relied upon have substantial bearing to the truth
or otherwise of the contention of the non-involvement of the
vehicle belonging to the school…..”
III. Objection by counsel for counsel on the statement recorded by
Court
3. All the witnesses being summoned and being present in
Court, I had directed oath to be administered by my Court Officer and
had put to the witness Shri Andrew J. Gosain questions relating to the
document, the opening words of the statement reads as follows:
“Statement of Andrew J. Gosain son of Shri U.S.Gosain,
FAO No.405 of 1993 (O&M) -4-Age 77 years, c/o St. Xavier’s Senior Secondary School,
Sector 44-C, Chandigarh on SA.”
At the foot of each page, the witness had signed and at the last page, he
had signed beneath the letters “RO&AC”. After the examination of this
witness, I was of the view that his evidence threw substantial light on the
relevance of the document which was in the criminal court record’s file,
which I directed to be exhibited in evidence as CW1/A. The other two
witnesses whom I had summoned, I decided not to examine them since in
my assessment, that there was no need for them. At the request of the
parties, I had directed the case to be posted to 03.06.2011 for arguments.
These details of the manner and circumstance of bringing a witness to
testify as a Court witness become necessary in view of how the senior
counsel for the school opened his arguments on the day when the case
was set down for hearing. He remarked that the statement of the witness
had not been examined after administering oath, as if to suggest that
there could be no reliance on the statement. I pointed out to him that oath
had been indeed administered. I reminded him that what was denied on
that day to the counsel for the appellant/school was only that he would
not be allowed to examine the witness in chief, but he was a Court
witness and he was being examined by the Court and a statement was
taken for the reasons enumerated under the Section 165 of the Evidence
Act itself. I also explained to him that the letters ‘SA’ at the opening of
the evidence signified ‘solemnly affirmed’ and the letters ‘RO&AC’ in the
last page meant, ‘read over and accepted as correct’, the abbreviations
being part of the court practice in the Courts of Punjab & Haryana.
FAO No.405 of 1993 (O&M) -5-
IV. Fallibilities in testimony of witnesses notwithstanding, proof of
involvement of the vehicle well established; Principal of the school
was not a witness for truth
4. In this case, the accident was spoken to apart from the
claimant, two witness, namely, Jaspal Singh (PW6), who stated that,
while he was proceeding on the noon time and waiting for bus at the
crossing of Phase VIII & IX at Mohali, a motorcyclist had crossed half of
the chowk when a bus bearing registration No.CHW-7130 had come
from the side and struck against the side of the motorcycle. In the chief-
examination, he referred to the name of the claimant as well. He admitted
that he did not know the claimant earlier and he had also not
accompanied him to the house. He further admitted that he could not
remember or give evidence of the directions in which the vehicles were
going. Learned counsel appearing on behalf of the appellant mounted an
attack on this evidence by pointing out that a person who did not know
the direction in which the vehicle was going and the person, who did not
know even the petitioner’s name, to be cited as a witness before Court,
cannot be relied on. He also pointed out that he made a reference to the
registration number as CHW-7130, but when actually the registration
number of the bus was CHW-7330. PW7 was another person, who was
said to be an eyewitness and the counsel for the appellant pointed out
that in the cross-examination, it was elicited that he had gone to PGI to
see a relative two days later and that was when he was supposed to have
met the father of the injured and that was when he came to know about
the name of the person. Learned senior counsel pointed out to the
unnatural tenor of his evidence. The learned counsel for the claimant,
FAO No.405 of 1993 (O&M) -6-
however, stated that both of them had given evidence to the effect that a
jeep of the Punjab School Education Board had taken the injured to PGI
and both of them had referred to the fact that the vehicle was coming
from the side and hit the claimant. He would want a holistic view of the
evidence to be taken than examining the statements from the extracting
standards that might be necessary in a criminal case. There is no
gainsaying the fact that the evidence of these two witnesses cannot really
help the Court to make a sure determination of the involvement of the
vehicle. It is in this context that the evidence secured from the criminal
court records and the statement of the Principal of the school, obtain
relevance. The letter which is found in the criminal court records which
is admitted to have been written by the witness CW1 reads as follows:-
“Mr. Manjeet Singh, Transport In-charge of our school, is
authorised to get our school Bus CHW 7330 released from
the Police & Courts and negotiate with the concerning party.
Sd/-
(ANDREW J. GOSAIN) PRINCIPAL”
The letter has been written on the letterhead of the school. The timing of
the letter is important. The letter happened to be written on the same day
when the accident had taken place. The Principal was giving the
authority to the transport-in-charge to get the bus bearing registration
No.CHW 7330 released from the police and the Courts. When I asked
him in Court, whether the vehicle had been seized by the police on that
day, he answered in the affirmative and he played down the incident as
the result of usual habit of the police to seize the vehicle whenever
FAO No.405 of 1993 (O&M) -7-
vehicular particulars were not available. He wanted to therefore, make it
appear as though the police had seized the vehicle only because some
documents were not available. When I asked whether he would allow the
fleet of vehicles run by the school to be plying on roads without the
necessary documents and expose the students to risk and harassment, he
dumped the transport in charge “as always negligent”. Further, the
reference to getting the vehicle released from the Court had no meaning,
if it was merely a case of lack of vehicular documents in the vehicle and
so, when he was asked as to why he was giving such an authority, he
disowned the whole statement and stated that he had signed without
reading the document. When I pointed out to him that the letter was type
written and between the words “police & courts”, there was a correction
with ink using the symbol ‘&’, he denied that he made the correction in
pen. I have examined the document carefully and the symbol ‘&’has
been written only in the very same ink which is used for affixing the
signature of the party. The addition through pen could not have been
made unless the letter had been read by the person, who wrote the
document. His attempt to say that he signed without reading what the
document contained was evidently to get over the meaning which the
letter purported to convey. It could not have been merely a seizure of the
vehicle by the police and he must have expected that it could even be
handed over to the Court’s custody. For a mere absence of vehicular
documents, there was no scope for the school to suspect that it would be
required to be taken custody from the Court. There was an additional
authority given in this letter which is of immense importance. The letter
FAO No.405 of 1993 (O&M) -8-
also grants authority to the transport -in-charge “to negotiate with the
concerning party”(sic). The author of the letter surely knew the
difference between the police, Court and “concerning party”. They were
not the same; they referred to different persons. The question of
negotiation has again meaning only if the seizure of the vehicle was itself
occasioned by incident which was more serious than mere absence of
vehicular documents. It would seem only most natural if the
apprehension was that there was an impending claim at the instance of a
person, who could have been injured in an accident. The four line
contents in the letter and the evidence of the witness in Court brought out
a definite inference that the vehicle had been involved in the accident.
The school was trying to make an issue out of the fact that the vehicle
had been seized by the police only after lodging the FIR four months
later. This is merely an attempt to conceal the fact. The very same
criminal court record’s file also contains a complaint by the father of the
claimant to SHO, Police Station, on 02.08.1989, that makes a reference
as follows:-
“the above said motorcycle along with the school bus was
taken into police custody by you from the spot.”
(underlining mine).
5. The learned senior counsel wants to say that if the
motorcycle had also been seized, there was nothing on record to show
that there was any application for release of the vehicle. This is exactly
the place where the untruth attempted by the school gives way. The
seizure of both the vehicles from the spot ought to be a matter of fact but
FAO No.405 of 1993 (O&M) -9-
that was not brought on record. Without the seizure, there was no
occasion for the school to give a letter of authority in the manner that it
did. I have already pointed out that the seizure could not have been
merely for absence of vehicular documents. The letter contained enough
to suggest that there was an accident. The evidence by the witness,
namely, the Principal of a renowned school and the evasive answers
which he has given are clearly illustrative of the fact that the witness was
not a witness for truth. The witness, on the other hand, was lying in
Court when he was saying that the vehicle was seized on that day for
absence of vehicular documents. When the letter which did not see the
light of evidence at the criminal court trial was brought to this Court and
when the party was confronted with the same, there was surely an
occasion for the school to make a clean breast of itself and admit to what
ought to have happened on that day. The school persisted with its tissues
to lies. I have no doubt in my mind that it was the very same vehicle
which was involved in the accident. If there was an accident and the
driver and the Principal of the school were denying the same, I would
only take it to the next logical extent that there was something to hide:
that the driver was rash and negligent in his driving and he had caused
the accident.
V. Delay in FIR, duly explained
6. There is one incident that cannot be denied that there was an
enormous delay in filing the FIR. If there is a delay, what is necessary at
the trial before the Tribunal is whether the delay is explained. Such an
explanation comes through the evidence of both the claimant and father.
FAO No.405 of 1993 (O&M) – 10 –
The claimant had been severely injured and he was in an unconscious
state for some days. There must have been sufficient anxiety of the
members of the family to save him and if they had not immediately gone
to the police to register a complaint, I will not take that to be a serious
lapse. It was also so stated in the same FIR that ‘the son was in coma for
a long period and was not in a position to state about the accident in spite
of several visits of the police hawaldar and every time, the doctor
declared the son to be unfit for making any statement’. It was also stated
at the time of trial that the police did not register the complaint only
because the very school was very influential. I find this explanation to be
sufficient. The Hon’ble Supreme Court has recently in a judgment in
Kusum Lata and others Versus Satbir and others in Civil Appeal No.
2269 of 2011, decided on March 2, 2011, while setting aside the decision
of this Court for disbelieving the case of an involvement of a vehicle by
the fact that the FIR did not contain the registration number of the
vehicle or the name of the driver referred to its own earlier judgment in
Bimla Devi v. Himachal Road Transport Corporation [(2009) 13 SCC
530]: “In a situation of this nature, the Tribunal has rightly taken a
holistic view of the matter. It was necessary to be borne in mind that
strict proof of an accident caused by a particular bus in a particular
manner may not be possible to be done by the claimants. The claimants
were merely to establish their case on the touchstone of preponderance of
probability. The standard of proof beyond reasonable doubt could not
have been applied.” It went to observe what the normal human instincts
of a near relative would be in such a situation: “This Court is unable to
FAO No.405 of 1993 (O&M) – 11 –
appreciate the aforesaid approach of the Tribunal and the High Court.
This Court is of the opinion that when a person is seeing that his brother,
being knocked down by a speeding vehicle, was suffering in pain and
was in need of immediate medical attention, that person is obviously
under a traumatic condition. His first attempt will be to take his brother
to a hospital or to a doctor. It is but natural for such a person not to be
conscious of the presence of any person in the vicinity especially when
Dheeraj did not stop at the spot after the accident and gave a chase to the
offending vehicle. Under such mental strain if the brother of the victim
forgot to take down the number of the offending vehicle it was also not
unnatural.”
7. Under the circumstances, I set aside the finding of the
Tribunal and hold that the accident was on account of rash and negligent
driving of the driver of the school.
VI. Evidence regarding injuries and period of hospitalization
8. Both the counsel have also advanced substantial arguments
for the compensation assessed by the Tribunal. The discharge summary
produced in Court and proved through the doctor, who had treated him at
PGI (PW9), refers to the fact that the claimant had been admitted with
injuries of fracture of the metatarsal bone on the right leg and avulsion
injury of the right foot and thigh and describing the treatment
administered. The document says that an adjustment of skin of the right
foot by transposition and rotation of flap with excision of the 5th
metatarsal head under general anesthesia referring further to the
condition of the patient at the time of discharge. The document records:
FAO No.405 of 1993 (O&M) – 12 –
(i) laxity of the right ankle and to joint, (ii) skinning of lateral 4 toes and
right opaetial collapse of leg arch, (iii) heel pad had been displaced
medially and painful callosity was present over lateral aspect of heel and
head of 5th metatarsal. The general observation relating to the injury is
shown as crushed avulsion injury of the right foot and thigh. He had been
admitted on 11.03.1992, operated on 18.03.1992 and was discharged on
21.03.1992.
9. Describing the nature of injury and the extent of disability
that could have been caused, Dr. R.K. Sharma (PW8), Assistant
Professor, Department of Plastic Surgery, PGI, Chandigarh, stated that,
“he had injuries on the right foot and his sole was avulsed from
calcanium to the metatarsal heads. He had also a wound in the right leg
in the knee area measuring 6cm x 6cm. He also had le fort, III fracture
of the maxilla. He also had multiple abrasions on the face. He also had
closed head injury.” The doctor claimed that he had managed the
surgical aspects of the patient and he was operated upon on 26.05.1989.
He had been given inter-dental wiring for the fracture of maxilla and that
was kept for three weeks. The doctor also stated that he was planning for
operation on his foot since he had painful heel out of which he could not
walk properly. He also stated that he had applied skin grafting on the
foot as well as on the leg wound and also stated that he was likely to
improve after surgery, though he was careful to state that the extent of
improvement on the foot could not be predicted.
10. PW9- Dr.Kamaljit Singh Grover, Junior Resident,
Orthopaedition, PGI, Chandigarh, gave evidence to the effect that one
FAO No.405 of 1993 (O&M) – 13 –
Dr.V.K.S.Sanjay, Orthopaedics Surgeon, had treated the petitioner. He
stated that he was admitted in the Emergency Ward of PGI on
26.04.1989 and was discharged on 14.06.1989. He was again admitted in
the private ward on 24.01.1990 and was discharged on 23.03.1990. This
part of the evidence showed that the patient had prolonged treatment in
the hospital. He also stated that the fracture metatarsal had got infected
and the avulsion injury resulted in shorting of the limb by ½ inch. The
disability certificate was said to have been issued by Dr.V.K.S.Sanjay,
but he himself was not produced as witness and the certificate was not,
therefore, exhibited in evidence. The witness PW9 himself was,
therefore, examined before the Tribunal, perhaps at the asking of the
Court, and he had given opinion to the effect that the claimant was still
limping. A surgery was immediately undertaken since there was a
discharge of puss. He was subsequently admitted on 11.03.1992,
operated on 18.03.1992 and was discharged on 21.03.1992. The
operation was a plastic surgery and skin grafting. The petitioner had been
operated upon four times by Orthopaedician and twice by the Plastic
Surgery Department. The discharge summary itself is for the subsequent
period of his admission and the treatment given to him. PW9 also gave
evidence to the effect that the patient was recommended special diet in
high protein during his admission. The disability spoken to by the
witness was, “the injured cannot stand for long time due to injury to his
right leg. The injured cannot do exercise to keep his body fit. In the
cross-examination, it was also stated that, “this injury has not made the
injured incapacitated to procure children. He is physically fit in his
FAO No.405 of 1993 (O&M) – 14 –
capacity but I cannot state about his mental condition”.
VII. Evidence relating to expenses and income
11. While addressing arguments on the expenses incurred, the
learned senior counsel for the claimant contends that all the medical bills
for purchase of medicines add to Rs.8,500/- and the doctor PW8 had
given evidence to state that they had charged Rs.6,410/- during his stay
at the hospital. Counsel appearing on behalf of the claimant would
contend that he had fairly a long spell of treatment for nearly 3 years
from the time when he met with an accident in the year 1989 till at least
March 1992 when he was discharged from the hospital as borne through
the discharge summary issued by the department of Plastic Surgery. The
counsel contended that the witness had given evidence to the effect that
he had spent Rs.1½ lakhs and he had also produced documentary
evidence to show that he was actually employed with Shakti Weldmesh
(P) Limited as a Manager, at a consolidated salary of Rs.4,500/- per
month on 13.01.1989, but on account of accident, he had to incur loss of
income and the certificate issued by the Director of the Company only
showed that the Company indemnified the petitioner to the tune of
Rs.25,000/- for medical treatment in lieu of his service dues. The
claimant’s own evidence in Court was that he was also an Insurance
Agent, earning about Rs.2,000/- to 3,000/- per month and that his service
stood terminated after the accident. He also contended that he was unable
to work as Insurance Agent and remained unmarried. He gave also
evidence to the effect that he was not in a position to get married and that
he cannot do any physical work.
FAO No.405 of 1993 (O&M) – 15 –
12. At the trial, he claimed that he had one servant engaged to
look after him. It was elicited in the cross-examination that he had been
admitted in the private ward of PGI and he had shown his income as
Rs.6,000/- per month. The Manager of the Shakti Weldmesh (P) Limited
was examined as PW4 and he stated that his services were terminated
after the accident on 26.04.1989 and they bound up the account which
the claimant had, by paying Rs.25,000/- towards medical expenses. The
father had been examined as PW5 to say that he had spent about Rs.1
½/2 lakhs for medical treatment and for special diet. Initially 2-3
attendants were engaged @ Rs.150/- per day, in the year 1990, two
servants were engaged @ Rs.50/- per day. The petitioner had also
produced an account book maintained by the petitioner containing the
details of expenses. It is merely a record of the entries of expenses
incurred over a period of time and merely producing document without
offering appropriate evidence was not correct. The claimant ought to
have spoken about the document to substantiate the same. The book
contains details of expenses incurred from the Month of April 1989 to
December 1989 and for the expenses from 1990, 1991 and 1992. The
details of expenses are conveyance, attendant charges and dietary
expenses. The claimant had also produced income certificate issued by
the LIC which had been assigned again Mark-A. The letter has been
issued under the seal of LIC on its letterhead and it shows that on
23.12.1989, the commission earned by the claimant was Rs.20,589/-.
Although not exhibited as evidence, I will accord to it a validity for
admission and take this as establishing that he was also working as an
FAO No.405 of 1993 (O&M) – 16 –
Agent and earning an income of around Rs.2,000/- per month as spoken
to by the claimant.
13. The Tribunal, while assessing compensation, had awarded
Rs.90,000/- towards medicines, treatment, diet, etc., Rs.50,000/- towards
pain and suffering and Rs.90,000/- for future loss. Going by the fact that
there was evidence through the Manager of the Company which had
employed the petitioner, I would take the loss of income at Rs.1,62,000/-
(4,500 x 36 months). For the same period, the loss of income as
Commission Agent of LIC at Rs.72,000/- (2,000 x 36 months). I would
take the 20% disability as assessed by PW9 as having resulted in 10%
loss of earning capacity having regard to the fact that he had an avulsion
injury and stiffness of the ankle and as spoken to by the claimant and
substantiated through the doctors’ evidence, his injury in the leg ought to
have resulted in inability to stand for a long period of time and affected
partially his mobility. Although the petitioner had given evidence that he
cannot work, he cannot marry and he could not also earn in future, I will
take the assessment of loss of earning capacity by taking the average
income at Rs.6,000/- per month and apply a multiplier suitable to the loss
of percentage of earning capacity, namely, Rs.1,29,600/- (6,000 x 10%
x12 x 18). Towards medical expenses, the Tribunal had awarded
Rs.90,000/-, which I do not find as high considering the fact that he had
fairly long spell of treatment and though the medical bills and the
medical expense at the hospital as brought through documents, supported
evidence only to about Rs.15,000/-, he had been staying in the private
ward and paying hospital charges. He had 4 operations for avulsion
FAO No.405 of 1993 (O&M) – 17 –
injury and fractures and 2 plastic surgeries and skin grafting. I will take
the medical expenses at Rs.90,000/- as already taken by the Tribunal.
The details of transportation and dietary expenses have been entered in
the book, but I am discarding the same since it was not exhibited as
evidence. In the absence of clear-cut evidence on the expenses, I will
provide for Rs.15,000/- towards transportation, by way of approximation
for a person, who could have gone to the hospital on several occasions.
He had been under a special dietary regimen and I will provide for
Rs.15,000/- each for dietary expenses. I will make again provision for
attendant charges for three years on an average of Rs.1,000/- and provide
for Rs.36,000/- towards attendant charges. Although the claimant had
spoken about the loss of marriage prospect, but the doctor’s evidence
does not support him. The overall compensation would come to
Rs.5,35,600. The amount in excess over what has been determined
already by the Tribunal shall attract interest at 6% from the date of
petition till date of payment.
VIII. Disposition
14. The Insurance Company’s liability is restricted to
Rs.50,000/- under the terms of policy issued under Motor Vehicles Act
of 1939. The amount over the same shall be borne by the school which is
the appellant in FAO No.405 of 1993. Under the circumstances, FAO
No.405 of 1993 is dismissed and FAO No.1258 of 1993 is allowed to the
extent mentioned above.
(K.KANNAN)
JUDGE
30 .06.2011
sanjeev