The President, Shishu Vihar Bhagini Mandal, Hyderabad and anr. Vs. Yellaiah - Court Judgment

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civil - recording of statement - section 145 of indian evidence act, 1872 - no obligation on court in case suit instituted under provisions of small causes courts act to record statement delivered by witness to read and obtain their signatures - sufficient if notes of evidence reduced into writing by judge - record of statement fall within meaning of word 'statement' as per section 145 - held, such statement can be put before witness for contradicting him. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - merely because the statement is not recorded in full or it is not read out or his signature obtained thereon, i fail to see how such a record of evidence could be excluded from the meaning of the word 'statement' appearing in section 145. it is a statement which though not in the hands of the witness himself, yet it is a statement which has been reduced into writing by the judge of the small cause court. the record of a statement, however perfunctory, is assumed to give a sufficient guarantee to the correctness of the statement made, but if words not recorded are brought in by some fiction, the object of the section would be defeated. i am therefore satisfied that the court below has erred in disallowing the two applications.1. these two revision petitions arise out of two i. as. filed in the court below for the purpose of recalling p. w. 1 and for permission to cross examine him with reference to previous statements recorded by the same court. the relevant facts are that the respondent-plaintiff instituted the suit in the court of small causes for recovery of a certain amount. the trial of the said suit had an unfortunate and chequered career. the chief judge, who tried the case first, was transferred before the case was concluded. he had recorded the statement of p. w. 1., the plaintiff, it is known that under the provisions of the hyderabad small cause courts act full evidence of a witness is not recorded nor it is read out to be witness nor his signature taken thereupon. what is recorded is only the notes made of the statement before the small cause court by the judge. subsequently another chief judge came in. according to the provisions of the small cause courts act, a de novo trial could be concluded he was also transferred and the present chief judge of the city small cause court commenced the trial. he recorded the statement of p. w. 1 again. while the witness was in the course of cross-examination, the learned counsel for the defendants sought to put to p. w. 1 certain statements he had made previously before the two presiding officers of the small cause court in this very case for the purpose of contradicting the witness under section 145 of the evidence act. the plaintiff objected to this course and consequently i. a. no. 513 of 1966 was filed by the defendants with a request that p. w. 1 should be permitted to be cross-examined with reference to the previous statements. both these applications were objected to by the plaintiff. the lower court dismissed both these petitions mainly on the ground that the notes of the statement of p. w. 1 made by the two presiding judges of the court of small causes, hyderabad do not come within the meaning of the word 'statement' appearing in section 145 of the evidence act. the defendants therefore cannot be permitted to cross-examine p. w. 1 with reference to those two previous statements for the purpose of contradicting him under sec. 145 of the evidence act. it is this view that is now questioned in these two revision petitions. since the questions are common i would dispose them of by one common order. 2a. section 145 of the evidence act reads as follows:'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.'the preliminary portion of the said section permits a witness to be cross-examined with reference to previous statements made by him either in writing or which statements were reduced into writing. in either case, the cross-examination must be relevant to the matters in question. that can be done even without such writing being shown to him or being proved. but if the purpose of the cross-examination is to contradict him by the previous statement or any portion thereof, before the writing can be proved, the attention of the witness must be called to those parts of the previous statements which are sought to be used for the purpose of contradicting him. the term 'statement' is not defined any where is the evidence act. it has a wider connotation. the section itself contemplates a statement which is either written by the witness himself or which was reduced into writing by some one else. it would not therefore be proper to construe the expression 'statement' in a narrower way. that would defeat the very purpose of section 145. 2. the object and effect of the rule in section 145 has been thus stated by alderson, b. in attorney general v. hitchcock, (1847) 1 ex 91 (102):'a witness may be asked any question which, if answered, would qualify or contradict some previous part of that witnesses' testimony, given on the trial of the issue, and, if that question is put to him and answered, the opposite party may then contradict him .......... you may ask him any question material to the issue, and if he denied it, you may prove that fact, as you are at liberty to prove any fact material to the issue.'3. in this case the previous statement is the evidence given by p. w. 1 before the court of small causes, it is no doubt true that under the provisions of the small cause courts act it was not obligatory on the part of the court to record the statement in full and then read it out to the witness and obtain his signature thereon. under the provisions of that act, it is enough if the notes of the evidence are reduced into writing by the judge of the small cause court. merely because the statement is not recorded in full or it is not read out or his signature obtained thereon, i fail to see how such a record of evidence could be excluded from the meaning of the word 'statement' appearing in section 145. it is a statement which though not in the hands of the witness himself, yet it is a statement which has been reduced into writing by the judge of the small cause court. such a statement therefore can be put to the witness under section 145 for the purpose of contradicting him. it cannot be in doubt that the previous statement may be letter, account books, written statement or even depositions. in the case of depositions they can either be in the form of fully recorded statements by the court or notes made of the statement under the provisions of the small cause courts act. i do not therefore see as to why a statement , which was reduced into writing, in the form of notes by a court of small causes cannot come within the ambit of section 145. i am of the view that any evidence taken in a summary case including a small cause case maybe admissible upon the conditions and for the purposes described in section 145 of the evidence act. unless otherwise compelled by may authority, i am inclined to hold that such a statement falls within the purview of section 145 of the evidence act. i do not therefore agree with the learned chief judge that the defendants could not put questions under section 145 with reference to those previous statements of p. w. 1 with a view to contradict him under section 145 of the indian evidence act. 4. there is no direct authority which will cover the case in point. there are, however, observations made in the following cases which support the conclusion. in tahsildar singh v. state of u. p. : 1959crilj1231 their lordships observed:'the record of a statement, however perfunctory, is assumed to give a sufficient guarantee to the correctness of the statement made, but if words not recorded are brought in by some fiction, the object of the section would be defeated.'5. in emperor v. najibuddin, air 1933 pat 589 a bench of the patna high court said;'a statement to an investigating officer can be deemed to have been 'reduced into writing' even when the officer has not recorded the statement in full, but has merely noted the gist of what was stated to him.'6. in emperor v. ajit kumar ghosh, air 1945 cal 159 it was observed by the learned judges:'for s. 162 it is immaterial whether the statement is recorded in the actual words of the witness. it is sufficient if it is written in the diary merely in the form of a memorandum.'7. it will thus be clear that in the abovesaid cases even the statements which were not fully recorded or statements which were recorded in the form of memorandum were treated as statements falling within the ambit of section 145 of the evidence act. i am therefore satisfied that the court below has erred in disallowing the two applications. 8. i would therefore allow the revision petitions and set aside the orders of the court below. the court below would permit p. w. 1 to be recalled and allow the defendants to cross-examine p. w. 1 with reference to his previous statements for the purpose of section 145. evidence act. the petitioners will get their costs in c. r. p. no. 1968 of 1966 only. 9. petition allowed.