1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT D.B. CIVIL SPECIAL APPEAL NO.21/1997 Mst. Farida & Ors. Vs. Abid & Ors. Date : 23.7.2007 PRESENT HON'BLE MR. JUSTICE RAJESH BALIA HON'BLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. G.M. Khan for the appellant. Mr. Dhanpat Choudhary for Mr. B.S. Rajpurohit for the appellant. None present for the respondent No.2. ______ Heard learned counsel for the parties. None has appeared for the respondent No.2 in spite of service and even after having waited for some time before concluding the hearing. This appeal is directed against the judgment of learned Single Judge dated 8th May, 1996 by which the learned Single Judge dismissed the appeal of the appellant-claimants for their claim before the Motor Accident Claims Tribunal, Bhilwara. The case of the appellants was that the deceased Jabar was accompanying his agriculture produce muskmelons in a 2 trolley owned by the respondent Abid. Because of the rash and negligent driving of the trolley driver, he received serious injuries, as a result of which Jabar was thrown out, who was sitting along with the muskmelons and wheel of trolley ran over his stomach. He was taken to Shahpura Hospital but he died on the way. The vehicle was insured with the respondent No.3, M/s Oriental Insurance Co. Ltd. The fact of the accident has not been denied but in reply on behalf of the owner and the driver it has been stated that had the deceased been more careful, he would not have died. It was specifically pleaded in reply that he was not sitting inside the trolley but he was sitting on the edge and, therefore, he fell. Had he been inside the trolley, he would not have fallen. However, the fact that he was thrown out of the trolley and came under the wheel of the trolley. These facts are not in dispute. The Insurance Company took the plea that the tractor was insured for being used for agricultural purpose and hence, it was in breach of insurance policy 3 and, therefore, the Insurance Company was not liable. On these pleadings the issues were framed, which were about the rash and negligent driving by the driver of the trolley. The appellants had led evidence but obviously they were not eye witnesses and had not accompanied the deceased with his agriculture produce. No evidence was led on behalf of the respondents to prove the facts where the deceased was sitting. The specific plea taken by the respondents to deny their liability that the deceased was sitting on the edge of the trolley was not proved by leading any evidence. While all other issues about the liability of the Insurance Company and the quantum of compensation at Rs.1,34,400/- to be awarded, if the claimants are entitled to compensation was decided in favour of the claimants but the Tribunal held that the claimant had failed to prove that the vehicle was driven rashly and negligently by the driver. In the light of aforesaid finding, the claim 4 petition of the present appellants was dismissed and the learned Single Judge has affirmed the finding of learned Tribunal. Having perused the record, we are of the opinion that this appeal must succeed. It is a cardinal principle of a claim under torts that where the circumstances speak for themselves, the inference can be drawn from that. This doctrine is expressed as the principle of res ipsa locquitor. There is no presumption in law that an owner of agricultural produce will be sitting on the edge of a trolley or on the hood of vehicle while carrying his produce. More probable is that the owner of the produce sits with his produce or if the produce is capable of taking his load on the top of his produce. In the circumstances, in absence of any material, no assumption could have been drawn about the exact position where the deceased was sitting at the time, the accident took place, except that he will 5 presumed to be sitting where a man of ordinary prudence in normal circumstances will sit. No presumption of taking a dare devil adventure can be raised against the injured / victim of accident. Moreover the driver of the tractor was the right person to have witnessed the incident when the accident took place. He has not dared to come in the witness-box nor any witness has been produced to prove the specific plea taken by the owner of vehicle the driver of the vehicle which was within their personal knowledge. In these circumstances, the burden of proving the fact that deceased was sitting at the edge of the tractor trolley rest with the person who had pleaded these facts and not on the claimants heirs of the deceased, who had no knowledge about the fact. If the respondents, who had pleaded this specific fact kept the only knowledgeable person out of witness box, no benefit can be derived by them for deviating from the legitimate inference which can be drawn from the 6 circumstances that the deceased must be sitting with his produce in the trolley. It is taking apparently wrong view of the burden of proof in the circumstances as they appeared from the pleading of the present case, the Motor Accident Claims Tribunal as well as the learned Single Judge has committed an error in drawing adverse inference against the claimants to deny their claim. Falling out of a person from the trolley is not a frequent or ordinary happening notwithstanding that the trolley may be in usual course is more man bumpy and jumpy. However, it is also well known fact that empty trolleys are more volatile than the trolleys filled with the produce, a trolley which carries the weight. From the record, it is evident that no evidence was led and no effort was made to prove the specific facts which were pleaded by owner of the vehicle in their reply to deny the claim of rash and negligent driving of the driver. We are, therefore, of the opinion that this appeal deserves to be allowed. The judgment under 7 appeal is set aside. The judgment of learned Single Judge and M.A.C.T. are set aside. As at no stage, the respondents have challenged the finding about the liability of the insurance company determined by the Motor Accident Claims Tribunal and the amount of compensation payable to the claimants. We have not examined the issue again. Accordingly, the claim of the appellants is allowed and we hold that they shall be entitled to Rs.1,37,400/- by way of compensation from the respondents for which they shall be jointly and severely liable. The amount of compensation shall be paid with interest at the rate of 12% with effect from the date of application until the date of actual payment. Since a long period has elapsed from the time of accident, the amount shall be paid to the claimants No.1, 2 and 3 i.e. widow and two children in accordance with their share in the estate of deceased under the Mohammedan Law. This shall be determined by the Accident Claims Tribunal. No costs. 8 [MAHESH CHANDRA SHARMA], J. [RAJESH BALIA], J. babulal/