1998 ACJ 593
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
(F.A. No.702 of 1996; decided on 10.9.1996)
PRESENT:
MR. JUSTICE N.J. PANDYA
MR. JUSTICE A.R. DAVE
Hiraben Mangabhai and others ... Appellants
V/s
Maganbhai Somabhai and others ... Respondents
Important point:
Evidence Act, 1872, sections 17 and 21-Criminal trial-Whether admission statement of driver of the offending vehicle before the Investigation Officer is admissible in evidence-Held: yes; admission made in a statement could be used against the party making admission in a civil proceedings. [1976 ACJ 72 (Gujarat ) followed]. (Paras 12, 13)
N.J. Pandya, J.-This appeal arises out of the judgment and award which came to be given by the Motor Accidents Claims Tribunal No.8 (Aux.), Ahmedabad in Motor Accident Claim Petition No.47 of 1990. The claim was preferred by widow and children of Mangabhai, who died in a vehicular accident. The accident occurred on 9.5.1989 and the vehicle involved in it was a trailer truck hearing No. GRD 2979. At about 10 p.m. husband of applicant No. 1 was proceeding with a hand-cart from Subhash Bridge towards his residence. As originally pleaded, the truck was driven by opponent No. 1 and on account of his negligent driving the said Mangabhai was knocked down with fatal consequences. The claimants had claimed Rs. 2,00,000/-.
2. In the course of time, opponent No.6 came to be joined as owner and opponent No.7 came to be joined as driver of the said vehicle. This change was brought about by application Exh. 8 before the trial court. This application had become necessary because the R.T.O. record revealed that the vehicle was in the name of the Executive Engineer, Public Works Department of the State of Gujarat. The said officer, on receipt of the summons, had addressed a letter to the Registrar of the trial court which was given Exh. 6. It is disclosed by this letter by the Executive Engineer that the vehicle in question was sold by public auction on 20.5.1988 and at the time of giving delivery of the vehiele, R.T.O. book, insurance certificate, etc. were handed over to the purchaser with Form H. The name of the purchaser is disclosed in the letter, the name being Mohd. Sherief Kasambhai Kureshi. The claimants did not join the said purchaser as respondent. It seems that by the time the claim petition was filed and the letter Exh. 6 was received, there was a criminal case initiated by the police arising out of the said incident. From these papers, names of respondent Nos. 6 and 7 were found out and that is how they came to be impleaded.
3. However, before the trial court, by filing pursis, Exh. 25, both opponent Nos. 1 and 7 came to be deleted. Opponent No. I was originally joined as the owner of the said vehicle and opponent No.7 was joined as its driver subsequently. At the time of the trial, however, because of pursis Exh. 25, no driver of the said vehicle was before the trial court and the matter proceeded on that basis.
4. The learned trial Judge dismissed the claim. The reason given by the learned Judge is that Executive Engineer, opponent No.5 has completed all the formalities after the sale of the vehicle and the person who purchased the vehicle is not joined as a party-opponent. Opponent No.6, who has been joined as owner of the vehicle, according to the learned Judge, has successfully shown before the trial court that he is not the owner and further on, the learned Judge notes the applicants having proved the factum of accident, but in absence of joinder of the driver of the truck as well as the real owner of the truck, rash and negligent driving has not been proved. Hence, issue No.1 is answered in the negative. In our opinion, this clearly discloses confusion about the law in the mind of the learned Judge. Had there been a clear-cut issue as to the ownership of the vehicle as also as to the controversy about the driver, the learned Judge could have answered the question of negligent driving in the affirmative but could have dealt with the issue of ownership as also that of the driver adequately and separately. To the extent, according to the learned Judge, that the owner is not brought on record and the name of the driver is deleted, perhaps and probably as an argument, his finding could be there pertaining to the owner and driver, but for the absence of these two persons as party-opponents on record to hold that the issue of negligent driving is not proved is a clear-cut error on the part of the learned Judge.
For the reasons stated hereafter, his finding as to the ownership of the vehicle against opponent No.6 and the absence of the driver, both cannot be sustained.
5. Firstly, we will tackle the aspect of ownership. Before the trial court, there was an application for interim award under section 140 of the Motor Vehicles Act. By that time, opponent-respondent No.6 was brought on record. He opposed the application and took a stand that the vehicle in question was with him at the relevant time and the vehicle being not in a working condition, it was lying in a garage. These questions have been put to him in his cross-examination during his deposition Exh. 77. He had to admit that these averments are to be found in the said reply, but he denies having instructed his lawyer to write the same in that reply. He had to admit that he has never objected to this averment having been made in the said reply.
6. His written statement Exh. 34 makes an interesting reading. In para 4, he does not deny the ownership of the vehicle. On the contrary, what has been pointed out by way of contention in para 4 is that the claimants have not produced strong evidence to establish that the vehicle in question is owned by respondent No.6. No doubt, it has been mentioned that he has been wrongly joined, but this is with reference to the fact that in the application, as originally filed, opponent No.5 of the trial court is shown to be the owner of the vehicle. In our opinion, this cannot be a denial of the allegation that respondent No.6 is the owner. This averment is made in the said application for joining respondent No.6 and respondent No.7 at Exh. 8.
7.' Written statement's para 5 makes a further interesting reading. Respondent No.6 claims ignorance about the incident and therefore, he insists that the fact as pleaded in the petition, should be proved. This, in our opinion, is no denial. Later on, he says that opponent No.1 shown as a driver, has been deleted and so is opponent No.7.
8 Had the matter rested here, probably, the learned trial Judge had some basis to come to the aforesaid conclusion. However, the deposition Exh. 77 of respondent No.6 indicates that he had called for the said vehicle for his own purpose on the date of the incident and according to the respondent No.6, it was from the said purchaser that the vehicle was called. Name of the purchaser is Kasambhai Qureshi. His full name is Mohamad Sherief Kasambhai Qureshi as per Exh. 6. The so-called ignorance about the vehicle and impression sought to be created for respondent No.6 had nothing to do with the vehicle is thus given a go-by. Coupled with this, if the stand taken in course of the interim compensation application is recalled, it is obvious that the vehicle was very much under the control of respondent No.6.
9. Further, in the said deposition Exh.77, on one hand in the cross-examination, he denies knowledge about the incident and on the other, he admits that it was said Qureshi who had informed him about the incident and this is to be found in page 6 of the deposition recorded by the trial court on 16.11.1995.
10. The person, who investigated the crime is P.S.I. Bhatia whose deposition is recorded at Exh. 57. He has placed on record the statement of Kamsi Varji Nitaji Bhimaji, i.e., opponent No.7 on record. He deposed that statement of the owner of the vehicle was also recorded. This statement is that of respondent No.6. That is why, in the cross-examination of respondent No.6 at Exh. 77, questions pertaining to the statements are also asked. No doubt, he has denied the same. However, as noted above, the statement has been proved to have been recorded in the deposition of P.5.1. Bhatia, Exh. 57.
11. In Gujarat, it is an admitted position of law that a statement given by a person, who knows about the vehicular accident as also that of the driver involved in the incident, is a statutory report because law casts the responsibility on the driver and the person who knows about the incident to report the same. This is to be found in section 89 of the Motor Vehicles Act, 1939. Amthiben Maganlal v. Superintending Geophysicist, O.N. G. C., 1976 ACJ 72 (Gujarat), a judgment of Division Bench of this court, clearly holds that a statement made by driver of the vehicle involved in the incident is admissible in evidence.
12. Moreover, from the point of view of Evidence Act, admission made in a statement could certainly be used against the party making admission in a civil proceedings to the extent it can be so done, according to law. Sections 17 and 21 of the Indian Evidence Act would be relevant for the purpose.
13. The statement of the driver thus brought on record in the course of the deposition of said P.S.I. Exh. 57 will, therefore, directly be covered by the aforesaid Gujarat decision and the statement of Nitaji Bhimaji, will therefore, have to be read in evidence. We decide to do so. It is now given Exh. 81 in the trial court record by this order.
14. Needless to say, the said statement contains total admission about the incident so far as respondent No.7 is concerned. It becomes, therefore, a matter of mere technicality whether his name originally joined by Exh. 8 has been deleted or not. More so, in the background of the fact that respondent No.6 is found to be shifting stand to suit his convenience. At interim stage, he admitted that the vehicle was with him and was under his control. In the written statement Exh. 34, he does not show courage to deny and in his deposition Exh. 77, during examination-in-chief, he takes this stand of denial which during his cross-examination is shaken considerably. In the aforesaid background, his evidence is not found acceptable at all. Driver of a vehicle involved in the incident is a necessary party. Accordingly, opponent No.7 was joined as such. In spite of efforts, when he could not be served, his name came to be deleted. In the meantime, the police papers referred to earlier, had indicated his admission with regard to the incident in no uncertain terms. Under the circumstances, we are of the view that this decision will not come in the way of the claimants in any manner. In the background of these peculiar facts and circumstances of the case, we are holding in favour of the claimants in this regard.
15. We have, therefore, no hesitation in holding that he is the owner and respondent No.7 was the driver of the vehicle involved in the accident.
16. About the negligence, there is no dispute whatsoever. The aforesaid Exh. 81 clearly indicates as much, so does the panchnama Exh. 60. As the driver of the vehicle is found to be negligent, the owner of the vehicle is, of course, vicariously liable. Had the learned trial Judge examined the record closely and had applied the relevant provisions of law, it is quite obvious that the position would have been contrary to which he had reached in his judgment under appeal. We set aside his finding and hold that claimants/appellants have succeeded in establishing the cause of death having been the negligent driving of the driver of the said vehicle. We also hold that the driver is the person, who was joined as opponent-respondent No. 7. Respondent No.6, being the owner, is held to be vicariously liable.
17. Learned advocate Mr. Prajapati appearing for respondent No.6 had relied on Om Parkash Dalmia v. Bina Saha, 1984 ACJ 224 (Patna) and a Full Bench decision of the Karnataka High Court in Paragourda v. Bhimappa, 1993 ACJ 568 (Karnataka). These decisions indicate that a person, whose name appears in the R.T.O. record as registered owner shall be deemed to be the owner of the vehicle. It is obvious that this deeming provision is in the nature of a rebuttable presumption. It is exactly what the said Full Bench decision says and records that if it is proved that the registered owner has ceased to be the owner, the consequence will follow. In our opinion, that exactly is the position here. Hence, these decisions do not help respondent No.6.
18. Unfortunately, the trial court had not even taken pain to ascertain the quantum. This we will now proceed to do because there is sufficient evidence on record.
19. The age of the deceased is said to be about 45 years. He was selling peanuts and other eatables in his hand-cart. One can, therefore, safely assume that his income was about Rs. 1,000/- p.m. from which after making sufficient reduction as to his personal expenses and expenses upon himself, dependency of the applicants can be worked out to Rs. 600/- per month. The claimants have tried to put a case that deceased was earning Rs. 75/- to Rs. 80/-per day. This is clear exaggeration. Taking the average income to be Rs. 30 to Rs. 35 per day, in our opinion, the aforesaid figure would certainly work out.
20. There is hardly any proof' as to the age of the deceased. Taking it to be 45 years as set out in the post-mortem note and more particularly when the postmortem note has been admitted by the other side, as per endorsement made on the list of documents Exh. 28, applying multiplier of 13 would be in fitness of things. On the aforesaid basis, the annual figure of Rs. 7,200/- will work out to Rs. 93,600/-. To this will be added the conventional sum of Rs. 10,000/- and Rs. 1,400/- towards the funeral and other expenses. The total amount thus awarded comes to Rs. 1,05,000/-. It is awarded with interest at the rate of 12 per cent per annum from the date of the petition and costs all through out. Respondent No.6 is directed to deposit the said sum within 3 months from today. On the amount being deposited, 10 per cent of the capital and interest both will be paid by account payee cheque to the claimants/appellants and the rest will be invested for a period of 10 years in a scheme most beneficial to the claimants/appellants. The investment shall have the usual prohibitions as to raising of loan and premature encashment without the permission of the Tribunal. The appeal along with C.A. and M.C.A. is disposed of accordingly.
Appeal allowed.
593_1998 Hiraben Mangabhai v. Maganbhai Soniabhai
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