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