Dulat, Shamsher Balladur ( 1 ) TWO motor cycles, one driven by Mohinder Kumar Bagai (hereinafter called the plaintiff) and the other by Brij Mohan Sawhney (hereinafter REFERRED TO as the defendant) collided on 26th February, 1950, at ab out 6-30 p. m. near the circus around Gol Dak-Khana and in a suit for recovery of damages to the tune of Rs. 10,000. 00 instituted by the plaintiff, the trial Judge finding that the accident was due to the negligence of the defendant has awarded a decree for Rs. 5,686/6. 00 in favour of the claimant. From this judgment and decree the defendant has filed an appeal which is R. F. A. No. 10-D of 1955 while the plaintiff-respondent has preferred cross-objections for raising the decretal amount by another Rs. 2. 000. 00. ( 2 ) THIS judgment will dispose of both the appeal and the cross-objections. It may be added that the plaint was amended to include the National Fire and General Insurance Company Ltd. , as defendant No. 2, The decree was awarded against both Brij Mohan Sawhney and the defendant- company and the appeal has been argued by Mr. F. C. Bedi for both the appellants. ( 3 ) THE plaintiff s case, on the other hand, is that the negligence throughout had been that of the defendant and he never had an opportunity to avert the accident which was due solely to the flagrant breach by the defendant of the traffic rule of keeping to one s side. ( 4 ) IN order to solve the problem about the place of impact, it is essential to refer to the evidence of Seargent Mohni P. W. 2, who reached the place of accident on the 27th of February, 1950. He prepared his own site plan which is Exhibit P. 4 and is not very much different from Exhibit P. B. He found signs of impact at the point marked x on plan Exhibit P. 4 which is practically identical with the place marked 4 in Exhibit P. B. The width of Havelock Road is about 30 feet and the distance between x and the nearest pavement is about 10 feet. He has deposed about the normal traffic rule that a person "coming on the right should keep to his left and give way to the oncoming traffic when turning right. He has deposed about the normal traffic rule that a person "coming on the right should keep to his left and give way to the oncoming traffic when turning right. " Plaintly, it was the duty of the defendant in such circumstances to give way to the plaintiff whose motor cycle he saw coming from the direction of the Market to the Havelock Read. Before I deal further with the evidence of Seargent Mohni , I may point cut to the testimony given by the defendant himself as D. W. 5. He asserted that in crossing Havelock Road to Market Road he gave a signal with the right hand showing his intention to take the turn. He also stated that in crossing the Havelock Road from the Gol Dak Khana he adopted straight line route and the impact with the motor cycle of the plaintiff took place at the place marked 3 . According to the defendant, he was travelling at a speed of 10 miles per hour while the plaintiff s motor cycle was runing at 35 miles per hour. According to the defendant, the plaintiff s motor cycle was at a distance of 12 yards when he stretched out his hand by way to signal. It is important to emphasise that the defendant in cross-examination deposed that the distance of his motor cycle from the place of impact at the time of accident was 4 to 5 yards, and when he gave the signal by his right hand, the motor cycle of the plaintiff was seme 13 yards from there. In other words, if the plaintiff s motor cycle had a speed of 35 miles per hour and the defendant was going on at 10 miles per hour, it is impossible to visualise the place of impact at point (3) when the distance between the two vehicles was 13 yards as stated by the defendant. In all probability, the plaintiff on this hypothesis would have crossed the point of impact a head of the defendant and no accident could have taken place. ( 5 ) SEARGENT Mohni s statement that he found evidence of an accident at point x is, in my opinion, conclusive, on this point and confirms with the realities of the situation. In all probability, the plaintiff on this hypothesis would have crossed the point of impact a head of the defendant and no accident could have taken place. ( 5 ) SEARGENT Mohni s statement that he found evidence of an accident at point x is, in my opinion, conclusive, on this point and confirms with the realities of the situation. It is no doubt true that this witness has taken a somewhat exaggerated view about the rectitude which is to be expected in following rules of the road. When he was asked whether the plaintiff when coming from Birla Mandir side thought the road to be clear and suddenly saw defendant taking a turn at a distance of 8 yards, was it not his duty to turn to the right or the left to avoid the accident, he replied that the plaintiff should keep to his to left in all circumstances in order to safeguard himself and the other traffic. The examination of the two motorcycles also revealed, according to the statement of Seargent Mohni, that the front wheel of the vehicle of the plaintiff had been pushed back and it had struck against something harder and more substantial to cause bending. In the opinion of the Seargent the plaintiff s motor cycle showed that it had met with a head-on-collision. ( 6 ) THE finding of the learned Judge relating to the negligence of the defendant finds ample support from the other evidence adduced by the parties. Jagir Singh P. W. 3, Sub-Inspector C. I. D. , reached the spot from Reading Read Police Station on 26th of February, 1950, immediately after the occurrence and found loth the motor cycles at point 4 , and later brought the Traffic Seargent on the spot. The eye-witness Daya Ram told Jagir Singh at that time that the impact had taken place at point 4 . It dees net seem to be seriously contended that if the collision had taken place at point 4 and net point 3 as suggested by the defendant, the negligence of the defendant is clearly to be inferred. R. S. Batra, who is a Sectional Officer in the Central P. W. D. stated as P. W. 4 that he along with his friend, K. G. Ahuja, who is P. W. 6, happened to be passing the scene of accident on 26th of February, 1950. R. S. Batra, who is a Sectional Officer in the Central P. W. D. stated as P. W. 4 that he along with his friend, K. G. Ahuja, who is P. W. 6, happened to be passing the scene of accident on 26th of February, 1950. They were on their way from Quality Restaurant to Birla Mandir and just past the Gol Dak Khana they saw the motor cycle of the plaintiff coming from Havelock Road side colliding with the defendant s vehicle after the plaintiff had crossed the Maket Road and was on his right side when the collision took place. His recollection of the accident coincides with that of the version given by the plaintiff. It is true that he was not produced as a witness earlier in the criminal case and the explanation given by the witness appears to be satisfactory. According to this witness, he joined the A. M. I. E. classes in Gupta College in December, 1950 along with P. W. 6, K. G. Ahuja. In that College, he met the plaintiff whom he recognised as the person who was the victim of the accident on 26th of February, 1950. On pointing this out to the plaintiff, the recollection of R. S. Batra was confirmed. The only blemish from which the statement of this witness suffers is that he did not stop to make enquiries after the accident had taken place which was the result of the wrong turning having been taken by the defendant. He neither lodged any report with the police nor informed the investigating officer who arrived at the scene. K. G. Ahuja, who is also a Government official in the Horticultural Division of the Central P. W. D. , has given evidence to support the story of R. S. Batra, Ahuja was accompanying Batra on the evening of 26th of February, 1950, when they decided to go to Biria Mandir from Quality Restaurant. Ahuja has deposed that. he stayed along with Batra at the scene of occurrence for about 10 or 12 minutes, but the other people having arrived there they decided to leave. Like Batra, Ahuja had also joined the A. M. I. E. classes in Gupta College where they accidently met the person whom they recognised as the person who had met with the accident nine months earlier in February. Like Batra, Ahuja had also joined the A. M. I. E. classes in Gupta College where they accidently met the person whom they recognised as the person who had met with the accident nine months earlier in February. These two witnesses are not interested in any way in supporting a wrong cause against an innocent person. ( 7 ) THE plaintiff, of course, has stated that he was driving at a normal speed while the defendant was driving fast. He suddenly noticed the defendant on motor cycle for the first time when the distance between them was 10 to 14 yards. Without giving any warning either by the blowing of horn or showing of hand, the defendant took an unexpected and sudden turn on the right to enter the Market Road and collided with his own vehicle. At all hands, there was no congestion of traffic at that time and the defendant having seen the plaintiff should not have departed from the normal rule of the road of keeping to one s side. From the evidence of the plaintiff it seems that he had no chance at all to avoid the accident when the defendant took a turn all of a sudden. ( 8 ) THE defendant has sought to support his version by the statements of Kul Bhushan D. W. 2 and Yamini Mohan D. W. 3. In our opinoon, the findings of the Traffic Seargent and the Sub-Inspeetor who immer diately came to the scene of occurrence coupled with the statements of the plaintiff and his witnesses leave no room for the contention of Mr. Bedi that the plaintiff s contributory negligence was responsible for the accident and indeed he had the last opportunity to avoid it. With regard to this submission, it may be pointed out that Chalesworth on Negligence (1956 edition) has observed at page 521 thus :- "as a principle of law the rule of the last opportunity-if it ever existed-is now dead, but it may sometimes be a useful test to apply in deciding, as a matter of fact, whether an accident was caused by the fault of one or both of the parties. "lord Simon with regard to this doctrine said in the case of Boy Andrew, at page 149 that :- "the suggested test of last opportunity seems to me inaptly phrased and likely in some cases to lead to error. . "lord Simon with regard to this doctrine said in the case of Boy Andrew, at page 149 that :- "the suggested test of last opportunity seems to me inaptly phrased and likely in some cases to lead to error. . . In truth there is no such rule the question, as in all questions of liability for a tortious act, is, not who had the last opportunity of avoiding the mischief, but whose act caused the wrong ?"the great jurist of common Law, Professor Winfield in his treatise on law of Torts (7th edition) has this to say at page 231 about the doctrine :- "whether it is based upon remoteness of damage or not, if it means that in every case the person whose negligence came last in time is solely responsible for the damage the rule of last opportunity is clearly illogical. " ( 9 ) THE law applicable in cases where the accident is due in some measure to the negligence of the party who claims damages has been stated in the off-quoted passage of Lord Birkenhead in Admiralty Comrs. v. S. S. Volute at page 144 :- "the question of contributory negligence must be dealt with somewhat broadly and upon common-sense principles, as a jury would probably deal with it. And while, no doubt, where a clear line can be drawn, the subsequent negligence is the only one to look to there are cases in which the two acts come so closely together, on the second act of negligence is so mixed up with the state of things brought about by the first act, that the party secondly negligent. . . might. . . . . . invoke the prior negligence as being part of the cause of the collision. "whatever respect was commanded by the last opporunity rule has been lost by the Law Reform (Contributory Negligence) Act, 1945, and it would be pertinent to repeat what Lord Justice Vershed said about this rule in Davies v. Swan Motor Co. Swansea Ltd; - "now that as a doctrine I venture to think has suffered a demise independently altogether of the Act of 1945. Swansea Ltd; - "now that as a doctrine I venture to think has suffered a demise independently altogether of the Act of 1945. No doubt, in practice, such a rule was found useful by judges who were anxious in the interest of justice to avoid coming to a conclusion wholly adverse to a plaintiff merely because, at the material time, the plaintiff was still a negligent actor to some perhaps quite trivial extent. Now the Law Reform (Contributory Negligence) Act, 1945. has rendered it no longer necessary toresort to devices of that kind. " ( 10 ) LATTERLY, Lord Denning in a Court of Appeal decision likewise treated the doctrine of last opportunity with similar consideration. Said he at page 615 in Jones v. Livox Quarries Ltd. :- "it can no w be safely asserted that the doctrine of last opportunity is obsolete; and also that contributory negligence does not depend on the existence of a duty. But the troublesome problem of causation still remains to be solved. "even if the common law, as it stood prior to the Law Reforms (Contributory Negligence) Act, 1945, said to be applicable to India, it would be readily observed that it has received scant respect from judicial authorities and cannot be regarded to lay down an acceptable principal for application. ( 11 ) THE evidence in the present case, far from establishing that the plaintiff had the last opportunity to avoid the accident shows that its causation is attributable almost entirely to the defendant. Indisputably he took a wrong turning at the wrong time and it may truly be said that the plaintiff at that moment of time was left dazed and puzzled by the blazing indiscretion commited by the defendant. We resolutely decline to infer from the evidence, as suggested by Mr. Bedi, the learned counsel for the appellant, that the plaintiff was left with sufficient time to take a turning on the right to avoid the accident. On his own showing, the defendant had reached the end of the road and was on the kerb when the impact took place. Bedi, the learned counsel for the appellant, that the plaintiff was left with sufficient time to take a turning on the right to avoid the accident. On his own showing, the defendant had reached the end of the road and was on the kerb when the impact took place. If indeed the plaintiff was on the edge of the road that would be a good submission to make but the impact had taken place some where in the middle of the road and on a review of the evidence we are satisfied that the plaintiff could not have taken any effective step at that juncture. In fact the plaintiffs seems to have been trapped by the defendant s ill-conceived and ill-timed action and as stated by Chalesworth in his treatise at page 512, he seems to have been put in a position of peril and dilemma. It may even be possible, as stated by Chief Justice Best in Chaplin v. Hawes- " On the sudden, a man may not be sufficiently self possessed to know in which way to decide; and in such a case I think the wrongdoer is the party who is to be answerable for the mischief, though it might have been prevented by the other party s acting differently. "it is not for the party who is doing the wrong thing to say that the victim of his negligence would have taken the wisest possible course in the circumstances espacially when, as in this case, the course which was left open to the plaintiff to avoid the accident is not clearly discernible. ( 12 ) ON the quantum of damages, it needs only to be asserted that the plaintiff s condition was serious at the time when he was removed in a semi-conscious condition to the Wellingdon Hospital on the evening of 26th of February 1950, as stated by Dr. Baldev Sahai P. W. 11. The plaintiff was removed from the Hospital to the Wellingdon Nursing Home on the following day. Even then he was in a semi-conscious condition and was vomitting blood. A permanent injury on the hand has resulted on account of the fractured thumb and the efficiency of the hand has been considerably affected by the shortening of the length of the thumb. This is apparent from the medical testimony of Dr. Even then he was in a semi-conscious condition and was vomitting blood. A permanent injury on the hand has resulted on account of the fractured thumb and the efficiency of the hand has been considerably affected by the shortening of the length of the thumb. This is apparent from the medical testimony of Dr. Mehdiratta P. W. 13, Major Vasu Deva, Deputy Medical Superintendent, Wellingdon Hospital, P. W. 9 and Dr. Seth P. W. 10. The actual expenses incurred by the. plaintiff have been allowed by the Court below in accordance with the evidence of S. L. Sharma P. W. 8 and Shri Mano har Lal Bagai, P. W. 14, father of the plaintiff. The repair to the motor cycle which was crushed has been proved by Durga Dass P. W. 12 and it has not been seriously disputed that a sum of Rs. 496/10. 00 was paid on this account. Accepting the evidence adduced by the plaintiff and adopting the reasoning of the learned Judge, we would hold that on account of medical expenses the sum of Rs. 189/12. 00 has been rightly allowed out of Rs. 1000. 00 claimed. This sum is sufficiently proved by the bills produced by P. W. 8. It it true that in many cases bills or receipts are not procured but the contention of the learned counsel for the plaintiff arguing the cross-objection that at least Rs. 500. 00 more should be allowed on this account does not seem acceptable to us. Out of Rs. 500. 00 claimed as damages to motor cycle, Rs. 496/10. 00 has been allowed and there is no challenge with regard to this item. On account of nervous, shock, mental worry, physical pain, resultant had health and constant headache because of the injuries a sum of Rs. 5000. 00 has been claimed and the trial Judge, in our opinion, has rightly allowed a sum of Rs. 25001 -.The learned Judge who had the advantage of examining the evidence himself has judged this matter rightly and for each item there is evidence to show that the plaintiff is actually entitled to some compensation. As regards the actual assement, there is no serious error committed by the trial Court who had the advantage of seeing the witnesses who appeared for the purpose and examining their demeanour. As regards the actual assement, there is no serious error committed by the trial Court who had the advantage of seeing the witnesses who appeared for the purpose and examining their demeanour. The long stay of the plaintiff in the hospital itself is sufficient proof of the troubles which accompanied the injuries caused by the accident. We equally see no reason to raise the amount by a sum of Rs. 1000. 00 as asked for in the cross objections. A sum of Rs. 2000. 00 was claimed on account of deformity and loss of power of left thumb and a sum of Rs. 1000. 00 has been awarded. That the plaintiff has been seriously handicapped on account of this deformity is not a matter of any doubt especailly for the career which he has chosen for himself.- We see no reason to enhance this sum of Rs. 590. 00 as asked for hy the cross-objector. Lastly, a sum of Rs. 1500. 00 has been allowed on account of loss in education as claimed by the plaintiff. The plaintiff received a setback in his education and what he would have achieved in the same year on account of his fairly good record was delayed by at least an year. This alone would justify the award of damages on this account. One other matter may be noticed before we finally conclude. Mr. Bedi, has placed strong reliance on the order of acquittal recorded in favour of the defendent by a Criminal Court in a case brought against him under sections 279/338, Indian Penal Code. As observed by a Full Bench of the Punjab High Court (Beckett, Abdur Rehman and Marten JJ.) in B. N. Kashyap v. The Crown, "the finding on certain facts by a Civil Court is not relevant before the Criminal Court under the provision of sections 40, 41, 42, 43, Indian Evidence Act when it is called upon to give a finding on the same facts or vice versa" This principle of law is equally applicable to the statements which were or were not made before a Criminal Court. Mr. Mr. Bedi has assailed the evidence of R. S. Batra P. W. 4 and K. G. Ahuja Public Witness 6 on the ground that they did not appear in the Criminal Court as witnesses although when they recognised the plaintiff in December, 1950, they still had time to appear before the Criminal Court whose judgment was delivered on 22nd of January, 1951. We do not know whether the evidence had been actually recorded before December, 1950, and besides, this is a circumstance which would not weigh with the decision of a Civil Court. In our opinion, the trial Court s judgment is correct and on a review of the evidence should beupheld. In a result, both the appeal and the cross-objections fail and are dismissed with costs.