KRISHNA KISHORE KAR Vs. CALCUTTA TRAMWAYS CO

JUDGEMENT

(1.) THE plaintiff used to carry on business under the name and style of Isis Coal Company. On 6. 1. 66, at about 11. 25 in the morning, the plaintiff was driving his Motor Car No. WBD 4095, towards the North along Bentinck Street, Calcutta, when the car had to be stopped at the crossing of Bentinck Street and Lall Bazar Street due to traffic signal. While the car remained stationary, the defendant's tram car No. 459, driven by a driver with identification No. 648 and a learner driver, came rashly at a very high speed along route No. 32 ignoring the red traffic signal and collided with the plaintiff's car from behind causing thereby extensive damage to the rear portion of the said car. Due to severe impact, the plaintiff also suffered personal injuries and shock resulting in fracture of the right Metacarpal bore of the right hand and extreme anxiety syndrome with continuous headache. The plaintiff, instituted the present suit claiming Rs. 22,114 by way of special damages and Rs. 2,00,000/-by way of general damage. In the written statement, the defendant admitted the collision between the said tram car and the plaintiff's motor car but alleged that the accident was caused due to contributory negligence of the plaintiff in rashly overtaking the said tram car and placing the motor car in front of it. The rest of the allegations in the plaint including the alleged claims for damages were all denied and disputed. The following issues were raised at the trial issues: 1. (a) Was the accident occasioned by the defendant's negligence as alleged in paragraph 5 of the plaint ? (b) Did the said accident happen on account of the contributory negligence of the plaintiff as pleaded in the written statement ?

(2.) DID the plaintiff suffer any injury on account of the said accident as alleged in paragraph 7 of the Plaint ?

(3.) (A) Did the plaintiff suffer any damage on account of the said accident as pleaded in the plaint ? (b) If so, is the defendant liable for such damages ? to what relief, if any, is the plaintiff entitled ? 2. There were three witnesses on behalf of the plaintiff including the plaintiff himself. No oral evidence was adduced on behalf of the defendant. 3. The plaintiff proved that accident was caused due to rash and negligent driving of the tram car by the defendant's said drivers. It is not disputed that the drivers were on duty at that time. The onus to prove contributory negligence under issue No. 1 (b) was on the defendant who did not give and evidence and did not discharge the said onus. I, therefore, accept the Plaintiff's evidence on this point. The next question is what were injuries plaintiff had suffered on account of this accident ? The plaintiff and his witness Naba Gopal Basu gave evidence regarding the damage to the rear portion of the plaintiff's motor car and the expenses incurred in repairing the same. The witness N. G. Basu was one of the partners of the firm Auto Electric Mechanic at the relevant time. The vehicle was repaired by this firm and the witness Basu has personnel knowledge of the same. Ext. J consists of two bills in connection with this repair. These two bills conclusively proved that Rs. 2021 /-was spent for repairing the said motor car. So far as the question of personal inquiry is concerned, Ext. A, is an out door patient ticket dated 13. 1. 66 issued to the plaintiff by the Medical College Hospital, Calcutta, showing that the right metacarpal bone of plaintiff's right hand was fractuied and plastered. During hearing I found that the right hand ring finger of the plaintiff was deformed due to this accident. The injury caused to the right hand and the damage of the car were not disputed by the defendant's counsel. But a serious dispute was raised regarding the head injury alleged by the plaintiff in his testimony. According to defendant's counsel this alleged head injury was not mentioned in the plaint or in the medical certificate dated 19. 1. 60 (Exi. H ). Hence there was a clear contradiction between the pleading and the proof on this point. The plaintiff in his testimony said that he had become benumbed and dazed after the accident. (Q. 8 and 16 ). 4n cross examination it was suggested to the plaintiff that he was fully alert mentally when the accident occurred as otherwise he could not have remembered the number of the tram car or the identification number of the driver. In answer, the plaintiff said that he got these numbers from the persons who helped him at the time of the accident. The plaintiff's complaint about the accident to the Officer -in -Charge, Hare Street Police Station, dated 8. 1. 66, (Para of Ext. E) which is a contemporaneous document, corroborated this oral evidence of the plaintiff. It is recorded that the traffic police present at that time took down the numbers. According to the plaintiff's witness Dr, Mukherjee, who had examined the plaintiff several times, the plaintiff had a jolt and shock in his brain due to that accident causing frontal lobal syndrome similar to anxiety syndroms ( Qs. 15-24 ). Ext. H, a medical certificate dated 19. 1. 66 issued by Dr, mukherjee within 10 days from the date of the accident recorded that the plaintiff had been suffering from "anxiety syndrome". It is true that "head injury'' was not specifically mentioned in the certificate or in the plaint but the effect of head injury "anxiety syndrome" was clearly recorded in these two documents. I am therefore, unable to accept the submissions on behalf of the defendant that there is a variation between the pleading and the proof on this point. According to Dr. Mukherjee the plaintiff's personality has been permanently deranged resulting in lack of concentration, irritable temper and slurred speech (Q. 27 ). From the defendant's letter dated 17. 1 66 (part of Ext. E) written by its claim officer, I find, that plaintiff was examined by the defendants medical officer on 20. 1 66 who had submitted. This medical report was disclosed by the defendant being item krishna Kishore Kar v. C. T. C. No. 6 in its affidavit -of -documents affirmed on 6. 11. 67 by one Debabrata Khastgir. The defendant had not given inspection of their documents to the plaintiff and as such I, by an order dated 5. 8. 80 directed the defendant to give inspection of its document to the Advocate on record of the plaintiff including this item No. 6. The defendant did not give inspection of item No. 6. As a matter of fact, the defendant did not mate any use of this medical report nor did the defendant include this report in the judges' brief of document. The plaintiff's counsel, therefore, submitted that an adverse inference should he drawn against the defendant for suppressing this vital document from court. He relied on A. I. R. 1968 S. C. 1413 at 1415 ( Gopal Krishnaji Ketkar v. Mohamed Haji Latif) in support of his contention. In paragraph 5 of this case, it was held as follows :-