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Asha Jayawant and anr. Vs. Lalsingh and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 311 of 1960
Judge
Reported inAIR1963Bom223; (1963)65BOMLR429; 1963MhLJ268
ActsCode of Civil Procedure (CPC), 1908 - Order 6, Rule 4
AppellantAsha Jayawant and anr.
RespondentLalsingh and anr.
Advocates:V.M. Kulkarni, Adv.
Excerpt:
.....or why defendant no. ' that this duty of giving particulars in case of a complaint of negligence, injuries suffered there form and the basis on which the damages are claimed cannot be avoided by the plaintiff is now well settled. 2,000/-.the same would apply to the claim for damages for physical injuries and how much for mental pain and they are to be separately and distinctly alleged. in my opinion, the application for particulars was well-founded and the learned judge should have exercised discretion properly and directed the plaintiff to give necessary particulars. whether the driving was out of a side road into a main road and without keeping a proper look out and giving warning, whether the car was going at an excessive speed, whether there was failure to give warning of approach,..........order rejecting in limine their application for particulars.2. opponent lalsingh has filed a suit claiming-damages valued at r.s. 5,000/- from the defendants. paragraphs 2, 3 and 4 of the plaint are as follows:-'2. that on 21-9-1958 at about 11.00 a.m. the plaintiff was knocked down by the car byj 1450 'which was being driven rashly and negligently by defendant no. 1 along the road near the reserve bank quarters, in civil lines, nagpur.3. that as a result of this collision the plain-tiff sustained severe injuries on his person which necessitated his being indoor patient in mayo hospital for nearly six months. even after this prolonged treatment, the plaintiff is permanently disabled and he cannot walk without the aid of a stick. even a little walking causes him pain all over his body.....
Judgment:

1. This revision by the original defendants arises out of an order rejecting in limine their application for particulars.

2. Opponent Lalsingh has filed a suit claiming-damages valued at R.s. 5,000/- from the defendants. Paragraphs 2, 3 and 4 of the plaint are as follows:-

'2. That on 21-9-1958 at about 11.00 A.M. the plaintiff was knocked down by the car BYJ 1450 'which was being driven rashly and negligently by defendant No. 1 along the road near the Reserve Bank Quarters, in Civil Lines, Nagpur.

3. That as a result of this collision the plain-tiff sustained severe injuries on his person which necessitated his being indoor patient in Mayo Hospital for nearly six months. Even after this prolonged treatment, the plaintiff is permanently disabled and he cannot walk without the aid of a stick. Even a little walking causes him pain all over his body and he is unable to attend to his daily work. His right arm is also permanently disabled. He cannot lift weights. The defendants are liable to compensate the plaintiff to the extent of R.s. 5000/- which damages the plaintiff has sustained.

4. That the plaintiff states the particulars of his claim as under ;

R.s. l.000/- towards medical expenses.

R.s. 2,000/- for loss of business for life.

R.s. 2.000/- for physical injuries and mental

pain.

R.s. 5,000/- total claim.'

This amount has not' been paid in spite of notices to the defendants.'

3. As soon as the applicants received summons they made an application for particulars. They complain that the plaintiff has given no particulars whatever as to how or why defendant No. 1 is said to be draying the car rashly or negligently. Similarly, their complaint was that the plaintiff's bare, allegation that he sustained injuries without particulars as to the nature of the injuries, the parts of the body on which he suffered and the extent of the injuries disables them from making any averment in defence. Permanent disabilities which the plaintiff has alleged are not also particularised in any manner. The nature of the disability is also not indicated. As regards the claim for damages their complaint was that there is no indication in the pleadings in the plaint as to where he was treated, what expenses he incurred for the treatment, by whom he was treated, what was the business of the plaintiff, for how long he suffered from business and how he suffered loss. Similarly, regarding the claim for physical injuries and mental pain no particulars of any kind have been given. The applicants therefore wanted particulars of rashness and negligence attributed to defendant No. 1, particulars of injuries alleged to be sustained, particulars of permanent disabilities sustained by the plaintiff and material facts from which it was possible to fix the quantum of damages. It is strange that the trial Court dismissed' the application for particulars observing that they are not necessary. Against this order the revision is filed.

4. Under Order 6, Rule 4 of the Code of Civil Procedure whenever a party relies on particulars where they are necessary they have to be stated in the pleadings. Certain forms of pleadings are given by way of illustration and one such illustration is form No. 30 in Appendix A to the Code of Civil Procedure. A cursory perusal of this form shows that in case of injuries caused by negligent driving particulars of negligent conduct by which the injuries were occasioned are required to be given. Though the example taken in the form is of injuries caused by a carriage driven by horses the same would apply and with greater force to the complaint of negligent driving of a motor vehicle. Mulla at page 581 in his 12th Edition of the Civil Procedure Code observed

'Where negligence or contributory negligence is charged, full details must be given of the acts on which the party pleading relies as constituting negligence.'

That this duty of giving particulars in case of a complaint of negligence, injuries suffered there form and the basis on which the damages are claimed cannot be avoided by the plaintiff is now well settled. The fundamental principle that the plaintiff cannot be permitted to follow a line of attack at the trial which the defendant had no opportunity to meet is of special importance in collision cases, where the accident happens very often in an entirely unexpected manner and in an extremely short space of time, rendering an accurate observation of the elements of the incident difficult in the highest degree. In this class of cases, it has been considered specially necessary that the plaintiff in framing his statement of claim, should set out the circumstances of the collision, with clearness and accuracy of enable his adversary to know the case he has to meet. He should also state in specific term the particular acts of negligence which, according to him, caused the collision.

5. In the instant case, the plaint allegations are obviously vague and extremely laconic. The plaintiff has 'alleged that he was knocked down by the car driven by defendant No. 1 rashly and negligently. He has not stated as to how the car Was being driven, from which direction to which direction, how and where it struck him, what was the negligent act on account of which he was knocked down, what according to the plaintiff caused the collision or injuries and position and location of the site of the accident.

6. The plaintiff has alleged in paragraph 3 of the plaint that he sustained severe injuries. He has not stated on which part of the body the injuries were sustained. He must also disclose the nature of the injuries and their gravity and how they affected his health. The plaintiff has averred that he has suffered some kind of permanent disability. What kind of disability he suffered is not disclosed. The plaintiff ought to disclose the nature of permanent disability. He must also disclose on what part of the body he experienced pain and why he was unable to attend to his daily work.

7. Similarly, in making the claim for damages, the plaintiff has divided his claim under three heads, viz. (1) towards medical expenses, (2) for loss of business for life and (3) for physical injuries and mental pain. The plaintiff must state where he took medical treatment; what he had to incur for that, whether the treatment was given at the Government hospital or otherwise, whether the expenses included fees of the medical attendant and medicines separately and other expenses, if any. The plaintiff has not disclosed what was his business and why he lost it for life and how he calculates this loss at R.s. 2,000/-. The same would apply to the claim for damages for physical injuries and how much for mental pain and they are to be separately and distinctly alleged. In my opinion, the application for particulars was well-founded and the learned Judge should have exercised discretion properly and directed the plaintiff to give necessary particulars. The advantage of the system of having particulars on record is that it shows at a glance the vital averments which are admitted and which are disputed. It enables issues to be settled immediately without going into details. Stone in his Book on Pleadings at pages 134-135 has illustrated how particulars of negligent driving should be stated; whether the driving was out of a side road into a main road and without keeping a proper look out and giving warning, whether the car was going at an excessive speed, whether there was failure to give warning of approach, whether there was failure to have the motor car under control and whether there was failure to stop the car when the accident was expected. These are all matters which must be particularised as far as known to the plaintiff

8. Similarly, regarding the injuries which are suffered the precise nature of the injuries must I be stated with necessary particulars in the plaint.

9. In my opinion, therefore, the trial Court exercised its jurisdiction with material irregularity in refusing the application of the defendants for particulars. I direct that the plaintiff shall be required to give particulars as asked for in the application of the applicants and thereafter the trial shall proceed according to law.

10. The application is allowed, but in view of the non-appearance of the non-applicant, there will be no order as to costs.

11. Application allowed.


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