G.C. Mital, J. - (1.) ANITA , minor daughter of Jagan Nath, got the femur bone of her left leg fractured, on 5th October, 1972, due to an accident caused with truck No. HRH 4896, which is admittedly owned by Rameshwar Dayal Respondent and at the time of accident was being driven by Ganesh Respondent. In the claim application made to the Motor Accidents Claims Tribunal, Hissar, it was alleged that at about 8.45 a.m. Anita, aged 13 years, was going to the F.C. College, Hissar, from her house situated in Railway Colony on a bicycle and when she reached near the Park view Hotel between Patel Park and Lajpat Rai Park, truck No. HRH 4896 came from Kath Mandi side at a fast speed. Due to rash and negligent driving of the truck, it took a. sudden turn towards its right side without any signal and the front bumper of the truck hit the injured with the result that her left leg was seriously fractured. The defence of the driver was that the accident was caused due to the negligence of the girl herself and that he was not driving the truck either negligently or rashly and neither he nor the owner of the truck were liable to pay any compensation. The truck was earlier owned by Amir Chand Respondent and while Amir Chand was the owner of the truck, it was insured with the New Great Insurance Company Ltd, but after Amir Chand had transferred the truck to Rameshwar Dayal, it was not insured and, therefore, the stand of Amir Chand and the insurance company was that if at all it would be Rameshwar Dayal and Ganesh who would be liable for compensation to be paid to the minor.
(2.) ON the contest of the parties, the following issues; were framed: (1) Whether the accident took place due to the negligence of Ganesh driver -Respondent No. 1, while driving the truck No. HRH 4896? (2) To what amount of compensation is the Petitioner entitled and from whom ? (3) Whether the insurance company Respondent No. 4 is entitled to special costs and from whom ? (4) Relief. The Tribunal, by award dated 30th April, 1975, came to the conclusion that the accident did not take place due to the negligence of Ganesh driver but under issue No. 2 came the conclusion that if it is found that Ganesh was negligent then the minor would be entitled to a compensation of Rs. 20,000/ - from Rameshwar Dayal and Ganesh, their liability being joint and several. Issue No. 3 was decided against the insurance company with the result that the claim petition was dismissed on account of the finding recorded under issue No. 1. The claimant has come up in appeal to this Court. As regards the injuries to Anita, it has come in the statement of Dr. B.M. Banerji (A.W. 8), A.M.O., Railway Hospital, Central New Delhi that Anita was admitted in the Hospital on 10th November, 1972, as an old case of fracture of femur having undergone a nailing operation and remained in that hospital upto 8th of August, 1973, and thereafter, she was again admitted on 19th September, 1974, and was discharged on 27th September 1974. Dr. Banerji testified that there was permanent disability caused to Anita due to the leg injury.
(3.) THIS brings me to the consideration of issue No. 1. The Tribunal decided this issue against the claimant solely on the basis of her statement made to Pokhar Dass, AS.I., which has been exhibited as A.W. 5/1. A reading of A.W. 5/1 does go to show that the driver of the truck was not guilty of the negligence but the question which remains for consideration is whether the previous statement, Exhibit A.W. 5/1, can be used against Anita claimant in this case, in view of Section 145 of the Evidence Act The counsel for the claimant has strenuously urged that the previous statement Exhibit A.W. 5/1 cannot be used against her in view of the two Supreme Court decisions, reported in Major Som Nath v. Union of India and Anr. : A.I.R. 1971 S.C. 1910 and Sita Ram Bhau Patil v. Ram Chandra Nago Patil and Anr. : A.I.R. 1977 S.C. 1712. On the other hand, the counsel for the Respondents has relied upon another Supreme Court decision reported in Bharat Singh and Ors. v. Mst. Bhagirathi : A.I.R. 1966 S.C. 405.;