Pritam Singh Safeer, J.
(1) -THIS appeal raises for determination the differentia in respect of ''rashness or Negligence' which may present a clear demarcation between civil negligence i. e. Negligence constituting a tortious act for which compensation may be awarded and negligence or rashness which may have the element of criminality punishable in terms of Sections 279 and 304A of the Indian Penal Code.
(2) I must record here that Mr. S. Malhotra who has appeared for the appellants has assisted me with eminent ability in this appeal. He has nto resorted to any irrelevant citation ur any uncalled for argument.
(3) An application was filed by Shri Bahadur Chand and his wife Smt. Janki Devi under section 110A of the Motor Vehicles Act against the respondent to this appeal who at the time of filing of the application and the accident mentioned therein was the S. D. M. Kangra.
(4) What we really become concerned with in this case is the happening at about 9.05 A. M. on the 26th of March, 1964 when the respondent came driving a jeep from a direction opposite to the one in which two boys named Ashok Kumar and the deceased Satish Kumar were proceeding on a cycle. The date, the time, the place of occurrence are undisputed. The learned counsel for the appellants took me through the order recorded by the Motor Accident Claims Tribunal, Punjab Chandigarh and he placed specific reliance on the evidence of AW/I, Ashok Kumar and A.W-6, Sewa Siagh, who hid investigated the case. It is note-worthy that Ashok Kumar AW-l is the natural eye-witness of the occurrence He was the person accompanying the deceased on that fateful morning, His evidence as will be seen later di,closes a very sorry state of affairs.
(5) Towards the closing part of his opening address Mr. Malhotra also read out the evidence of RW-9 who is none else than the respondent. He painted out the various parts in that evidence tome. He concluded his arguments by preferring to the e is; which is reported as (Minor Veeran and another v. T. V. Krishanamoorty and another). In his reply he has drawn my attention to another case i. e. (Arvmugham Pillai v. Gnanasonndara. Pandian and another). I am compelled to observe once again that the learned counsel must have addressed himself to the real aspect in controversy while making tie choice confining himself to these two citations.
(6) In order to truly adjudge the subject matter in controversy it would be better to refer to these particular cases and to have in the first instance before myself the law as appreciated by the Kerala High Court The case cited by Mr. Malhotra is : AIR1966Ker172 (Minor Veeran and another v T V. Krishanamoorty and another). That is a remarkable case. The learned author of the judgment, Hon'ble Justice M. Madhivan Nair, took special pains in arriving at his conclusion and looked through the law laid down at various times in the English cases. Before noticing the case law, he noticed in paragraph 5 of that judgment the definition of 'negligence' as given by Winfield. That definition deserves to be reproduced here:-
'THE breach of legal duty to take care which results in damage undesired by the defendant, to the plaintiff.'
(7) It has again been noticed in that very paragraph that 'Winfield had defined 'duty to take care' as a restriction of the defendant's freedom of conduct, obliging him to behave as a reasonable careful men would behave in the like circumstances.'
(8) The respondent to this appeal as a law abiding citizen did owe a duty to perform his function of driving the jeep in such a manner as to take appropriate and reasonable care to avoid such acts of omission or commission the consequences of which could have been foreseen by a man of ordinary prudence.
(9) It is noticed in the judgment referred to above that there is a point of time in case of given happenings when as between the persons affected a kind of neighborliness arises. That causes a situation in which both sides have to use diligent foresight to determine their respective responsibilities under the prevailing circumstances. In the case reported as Overseer Transship (UK) v- Marts Dook and Engineering Co 'at page 422 the Judicial Committee speaking through Viscount Simonds made an observation which has been noticed by the Hon'ble Judge in the Kerala case and that observation deserves to be clipped out here so that attention is fixed on the- significant point for determination in the instant appeal. I hat observation is in the following terms :-
'It's a principle of civil liability.......... that a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh rule. To demand less is to ignore that civilized order requires the observations of a minimum standard of behavior.'
(10) In this case it has to be determined whether the respondent should have conceived a state of mind at a particular moment in the course of the accident with which we are concerned which should have caused the foresight regarding the probable consequence of his acts of omission or commission. The demand more from him would be too harsh according to the foregoing observations made by Viscount Simonds.
(11) In paragraph 7 of the same judgment the observations made are to the following effect :
'A reasonable man would so regulate his conduct as to avoid producing only undesirable consequences which he foresees as probable. That is the normal standard of careful conduct. If the conduct in question falls short of that standard it is negligent '
(12) A little further in the same paragraph there is another noteworthy observation which is as under :-
'IF the circumstances of the act are such that a reasonable man would have foreseen the p:obability of the accident, then the defendant who failed to do like wise or who envisaged it and rejected it as too remote a chance has to be regarded as having been negligent.'
(13) What is to be seen in the instant case thereforee, is whether the respondent as a reasonable man could have regulated his conduct so as to avoid the accident which look place. The question is whether the respondent could be beheld to have exactly foreseen the consequences which have resulted and even then acted negligently.
(14) It would be appropriate if the case cited by Mr. Malhotra while he was replying to the arguments of his opponent i. e. Air 1963 Mad 162(Arumugham Ptllai v. Gnanasoundara Pandian and anothers') is also noticed in this very sequence. This citation tries to pin point the difference between civil negligence and the one which is punishable as criminal negligence in the course of prosecution for offences under the Indian Penal Code. The definition of negligence contained in Halsbury's Laws of England, 3rd Edition Vol. 2.8, paragraph I noticed in the foregoing case is as under :-
'NEGLIGENCE is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case and the categories of negligence are never closed. It may consist in omitting to do something which ought to be done, or in doing something which ought to be done either in a different manner or nto at all. Where 'there is no duty to exercise care, negligence in the popular sense has no legal consequence. there there is a duty to exercise care, reasonable care must be taken to avoid acts or commissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the accompanying circumstances and may vary according to the amount of the risk;o be encountered and to the magnitude of the prospective injury '
(15) The foregoing definition strikes a slightly different note than that what has been noticed and observed in the judgment of the Kerala High Court in : AIR1966Ker172 . This is so because in one place the definition in Halsbury's Laws of England says as under :-
'WHERE there is no duty to exercise care, negligence in the popular sence has no legal consequence'
(16) In my own estimate there can be no situation in which, in law a corresponding duty does nto arise as between the two parties who have achieved a kind of neighbour liness in a given situation of time and space to so regulate themselves as to avoid any act or omission which may result into an accident. That is how civil negligence stands classified as apart, from rashness or negligence containing as element of criminally punishable in terms of Sections 279 and 304-A of the Indian Penal Cod'.
(17) In view of the foregoing observations I told Mr. Malhotra. that he should point out that evidence in the case which may be specifying the exact moment both in time and spice when caution must have arisen to the respondent so as to warn him to do some positive act or to forbear from doing something which could have eliminated the occur, ing of the accident. Without that no case of Civil negligence calling for awarding of compensation could be held to have been established To he absolutely explicit it would be appropriate to Say that what is required in this appeal is to point out or to how it is proved that the driver of the jeep with hi' vehicle was at a particular distance from the deceased and was in such a situation which may now call 'or the finding that he acted with civil negligence and if he had nto acted in that way then the accident might have been averted. I have observed regarding time and space in the sense that in order to establish a cogent argument it must be shown through present facts that there was a particular distance between the jeep and the deceased and there was enough of time for the mind of the driver to function positively so as to give him the warning which a reasonable person must have received in that situation for desisting from the course which ensued. If it can be held that Ujjagar Singh Respondent 1s responsible for the alleged civil negligence then there will be no getting out for his
(18) As I have said earlier the learned counsel for the appellant, rightly relied lion the evidence furnished by A.W-1 and then tried to derive support from the evidence of AW-6. He also referred to the evidence of R.W-9, the respondent.
(19) A very strange situation is created in this case. The investigating agency and the prosecuting agency both seem to have been changing sides while collecting and pleading the circumstances of the case. It is also regrettable that while the respondent who is the author of the first information report, stated in a written composition that the accident had taken place in a certain manner, he elaborated the accident although carefully but differently. when he was making the deposition oath It is significant that in the first information report he stated that the speed of the vehicle was twenty miles per hour and that the right side of the jeep had passed over the deceased, In his deposition in Court he stated that the speed was 15 miles per hour and give an Explanationn as to why he had mentioned the particular speed in the first information report. He, in my estimation, did something very incorrect in trying to get out of the original version furnished by the first information report where in he had stated that the right side wheel of the jeep had passed over the diceaseds; I am unhappy that I am restricted to the legal cone quinces that flow:out of the proven circumstances of the case. I must say that there was no justification to keep back the photographs which A.W.6 stated had been talceti and which may have shown the point on the road where the impact had taken place between the jeep and the body of the deceased. Lto of blood and the jeep tyre marks on the road must have been photographed.
(20) The evidence of A.W-1 Ashok Kumar, calls for adverse comments. The case has been argued at quite some length. I persisted in asking Mr. Malhotra to read out the statement of AW-l any number of times so to pin point any part of the deposition which would assist me in coming to the finding that there was such distance between the jeep and the deceased which could furnish to me the judicial conclusion that Ujjagar Singh was a person responsible for civil negligence actionable in tort in respect of which compensation could be awarded. The detailed consideration of Ashok Kumar's evidence discloses the determined effort on his part to so state the accident as to completely exonerate him self From all contributory blame leading to the falling of the decayed Satish Kumar from the cycle just perhaps a few moments before the actual accident. He was in the company of the appellant's son when the accident occurred through which the deceased perished. In the peculiar circumstances of this case A.W, ' has rendered the version so as to explain the circumstan.:5S in such a manner that it may nto be said at any time that he jolted the cycle and the deceived on to the road. The case for the appellant as disclosed by Ashok Kumar is to the effect that the deceased had come on the cycle in the morning and had asked for his company just for ride. In the first instance be himself was pedalling the cycle and was carrying Satish Kumar. He states that when they were returning Satish Kumar had taken the turn of paddling the cycle and he was sitting on the rear mudguard although there was no foot-stand. He admits that there was no carrier attached to the cycle. This deposition does nto stand a moment of scrutiny. The rear mudguard of the cycle with no foot-stand cannto support the weight of even a child of six years. There are two reasons. The breadth oF the non-round portion of the rear mudguard is barely of an inch. The tin or iron sheet used in its manufacture is very thin and the rubber wheel runs closely under it. Without any foot-support the entire body would weigh upon the mudgard and cause its impact with the wheel. That type of version is fraught with visible impossibility and does nto inspire acceptance. The question arises why does AW-I setup such version. In all probability he 'ants himself for all times to be considered as a person whenever made any mistake leading to the unfortunate accident. The anxiety on his part became obvious when he says that as soon as a fear arose to his mind that there may be an accident due to the coming of the jeep he just put his feet on the ground and by that performance released the Cycle from his contact. Even if for a while the foregoing part of his deposition be tested which I still maintain is untrustworthy, then to a person straightly away giving up his grip of the iron bar beneath the saddle around which was the grip of his hand must have caused a jolt to the person on the saddle Another version is furnished by the statement of RW. 9. to which the appellants counsel has chosen to refer. He says that he saw two boys on the cycle. One was paddling and the other was sitting in the front on the iron bar. His statement in the examination in-chief is that when the cycle was at a distance of two yards the boy who was riding; the cycle suddenly gto of. That part of the statement is to the following effect:
'WHEN the cycle was at a distance of about two yards from the jeep the bey who was sitting on 'he saddle suddenly gto of (then said jumped of the) cycle to his left hand side and released the handle of the cycle.'
I put it to Mr. Malhotra as to whether as across the foregoing statement or even otherwise there is any where any deposition which may show as to how far the cycle was from the jeep when one of the boys had suddenly gto of It would be appropriate here to refer to the admitted aspect of the case that there were two boys, one of whom was pedalling the cycle and the other was on some part of the cycle and that one of the two had suddenly jumped off. To that extent there is no dispute. The dispute may be as to who was pedalling and where was the other one perching on the cycle. The dispute may be with respect to the manner in which one of the two boys left the cycle. The fact remains undisputed that there were two boys on the cycle and one of them suddenly departed there from and the accident took place instantaneously thereafter. The facts disclose that one of the two escaped and the other gto involved in the accident. Now all that is to be seen in terms of the law discussed above is as to whether the distance between the jeep and the boy who fell, in terms of time and space, was such as to give the breath of warning to the driver of the jeep that if he did nto act in a particular way an accident will occur. Was it nto enough and natural for him to swerve to the left, which he at least says, he- did? Ashok Kumar AW-I furnishes no contrary deposition and AW-6 has produced no photographs. This consideration is very important because it is nobody's case that the jeep due to negligent or rash driving struck into the cycle coming from the opposite direction and fh?t caused the accident. If that had happened there would have been no difficulty for the appellants.
(21) It is worth remembering that negligence is nto born out motive and is always traceable to an element of rashness accompanied by bravado.
(22) Returning to this case it is an admitted fact that one of the boys left cycle and the other was toppled along with it in one to the road and it was at that time that the accident occurred, If the time between the falling of the boy and the impact of the vehicle was such that no reasonable person could have spared the accident then the law will nto come in against him. In that situation it does nto matter whether the jeep passed over the boy or not. The question is could the driver of the jeep have stopped the vehicle out of a caution arising to him both in terms of the time and the space left between him and the boy falling before the jeep The boy fell down without any fault in the part of the driver. The question is could the driver have anticipated that one of the two boys on the cycle will suddenly leave it occasioning the fall of his companion as well as of the cycle The boy having so suddenly fallen was the driver of the jeep essentially to apply the brakes or the caution that arose to his mind was only sufficient in that particular moment to make him to swerve the car to the extreme left? Faced with this situation the learned counsel for the appellant, Mr. Malhotra, in all fairness stated that apart from the cross-examination of RW-9 there was hardly any deposition which could call for attention. That part of the deposition of RW-9 is towards the end of his statement in cross-examination and is to the following effect:-
'It's also incorrect to suggest that the deceased boy had fallen of the cycle when the jeep was at a distance of 30/35 yards after the accident.'
(23) That statement is in the negative form. It is a deposition denying the version put to him in opposition to his statement in examination in-chief which was to the effect that the distance was that of two yards only.
(24) I put it to the learned counsel for the appellant whether denial of the defense version which by clear implication may be the affirmence of the deposition in examination-in-chief can in fact or in law be taken as the proof of a fact which is assertively refuted. He has submitted that unless there is other evidence than the depositions under consideration then the emphatic denial of the defense version during cross-examination cannto suns tract any contrary assertions from the examination-in-chief.
(25) The Respondent 1s a parson whose testimony is highly interested. I told Mr. Malhotra that I was prepared to ignore the depositions made by Ujjagar Singh in their entirety and that I wanted him to point out any other evidence adduced in the case on which I could place reliance and conclude that the distance between the jeeo and the boy who fell before it was such at that particular moment so as to give the requisite caution to the reasonable functioning of any prudent mind enabling it to avoid the accident. He is unable to refer to any evidence but submits that Ujjagar Singh could have stopped the vehicle. That argument suffers from the assumption that no prudent mind could have estimated that turning the vehicle to the extreme left would spare the impact. It all happened in a moment and AW-l's evidence, as will be seen later, makes it all the more difficult to come to a finding that the respondent acted either rashly or negligently. A close examination of the evidence discloses that several stages the prosecuting and investigating agencies and even the appellant's were trying to dilute the case. I cannto understand why Bhadur Chand, one of the appellants, who was admittedly a prosecuting Sub-Inspector, did nto take care to see to it that the photographs taken immediately after the accident were placed on the record. Ex. R-1, the only photograph which has been introduced during the course of the cross examination of AW-6 does nto help the appellants case. The evidence of AW-6 shown that photographs were taken during the investigation conducted by him. These photographs could have shown lto of blood fallen out of the deceased. The mark of the jeep lyres would have been there Why was the the appellant No. 1 a prosecuting Sub-Inspector sleeping on when the photographs were being kept back Some dependable evidence should have been adduced to establish the distance between the point of impact and the point where-the jeep stopped All kinds of confusions have been create din the course of evidence. It passes comprehension why the appellants did nto produce cogent evidence. The learned counsel for the respondent has referred to some case which I would molly like to notice. These are Air 1939 Pas 33 A. I R. 1950 T C 14 and 1962 P. L R. 448 In th; Travancore Cochin case the observations are in the context a trial under Sections 279 and 304A of the Indian Penal Code I am with Mr. Malhotra that what the appellants were called upon to prove was civil negligence and nto any rashness having an essential element of criminality in it.
(26) The case cited as 1962 P. L. R. 448 is, however, a direct authority dealing with the provisions of the Indian Motor Vehicles Act and with an application for compensation made there under. The learned counsel for the Respondent 1nvited my attention to certain observations contained in paragraph 7 of the judgment. .While dealing with an application under section 110 A of the Motor Vehicles Act my Lord Justice Dua observed as under-:--
'INorder, thereforee to discover the criterion or test for fixing liability, we have, in the absence of any statutory provision fixing liability irrespective of negligence, to. turn to the law of torts according to which indisputably negligence in causing the accident in question is generally speaking essential to hold the negligent person liable. The cardinal principle of liability in tort, when death or bodily injury has been caused to a person, is negligence or failure to take the requisite amount of care required by law.'
(27) Applying the foregoing test I am unable io hold that there was such a moment in this case when the respondent should have reasonably foreseen that the jeep would over-run the body of the deceased. As I have said in the earlier part of this judgment that could have bean determined only on the basis of a clear evidence as to what was the distance between the jeep and the cycle when one of the boys fell from it. There being no such evidence for leading to any clear finding no liability in tort can be fastened on the respondent.
(28) Another case cited by the learned counsel for the respondent is reported as 1968 Accidents Claims Journal 51. The Hon'ble the Supreme Court of India was dealing with a case arising out of a trial in respect of the offence under Section 304A of the Indian Penal Code. The respondents learned Counsel after prefering in the said reference submits that in order to create liability the particular act must be the only proximate cause of the accident. It is note-worthy that Ashok Kumar, on whose testimony the appellants could succeed or fail had already appeared as a winless during the course of the criminal trial against the respondent He was saturated with the familiarity of making a statement before a Court of Law. The reading of his statement discloses that he was mature in mind. There are many affirmations in his deposition which substantiate the findings which are being recorded here. Some of his statements deserve to be noticed He has set up a case that after he left the cycle of a place where some crushed stones were lying on the road side it suddenly struck against stone. The deceased and the cycle, according to A W-1 fell on the road because the cycle had struck against that stone His words are :
'CYCLE struck against that whitest one and he fell on the mottled road as his right hand side, but I cannto say whether the jeep I ad reached at the time there or not. The witness was put again the question if he could recheck how far the jeep was from the spot, when Satish had fallen on the Pacca road, the witness replied that be cannto say. 'I hen the jeep had passed over Satish. I cannto give the distance where the jeep stopped.'
(29) All that has been included inside the inverted comas is from the opening part of the examination-in-chief of Ashok Kumar AW- 1 who was the natural witness of the occurrence.
(30) A reading of that assertion by AW. 1 shows that he wants to turn the blame over to the striking of the cycle with the stone and wants to achieve the effect that he was nto responsible for causing the sudden jolt to the cycle or its rider. The matter does nto end there. The witness was given another chance and while on oath in the course of the same deposition he said as under:-
'It's wrong to say that the jeep was 5/6 feet when Satish had fallen but I cannto say how far the jeep was away from him when he had fallen. I cannto say whether it was 5 feet or 10 feet. r cannto say whether it was less than five feet.'
(31) When the star witness produced on behalf of the appellants is unable to deny that the jeep was at a distance of less than five feet at the time of impact then it becomes absolutely difficult to find that the driver of the jeep had any space of a breath in the course of which he could desist from any of omission or commission which may have spared the happening In this situation it would be illegal to hold the respondent guilty of any negligence entitling the appellants to any compensation.
(32) The appellants have suffered a great loss and the counsel appearing on their behalf has rendered real assistance.
(33) The appeal is dismissed but there will be no order as to costs.