1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- J U D G M E N T CIVIL MISC. APPEAL No. 745 of 1997 R S R T C & ANR V/S PRAVIN KUMAR Date of Judgment : 16.3.2009 HON'BLE SHRI N P GUPTA,J. Mr. ANIL BACHAWAT, for the appellant / petitioner Nobody appears for the Respondent/s. BY THE COURT : This appeal has been filed by the appellant, who is the owner of the vehicle, against the award of the Motor Accident Claims Tribunal, Rajsamand dated 19.3.1997, passing an award in the sum of Rs.75,000/- on account of personal injury sustained by the claimant. The brief facts of the case are, that on 3.7.1991 the claimant respondent was travelling in the bus of the appellant as a passenger. In the Desuri Ki Naal on account of negligent driving of the bus, it hit against the hillock, as a result of which, the claimant was thrown out, and sustained injury. He has claimed that he was student of 9th standard. 2 The appellant contested the claim by filing the written-statement, and only adopted a stand of denial for want of knowledge and proof. It was also pleaded that the appellant operates vehicles in public interest, from whom no compensation, or interest can be awarded. In other words, it can very safely been inferred, that the factual averments, about the happening of the accident, negligent driving of the bus, the claimant's sustaining personal injuries etc. were not at all denied, and are required to be taken to be admitted, on the principle of non-traverse. However, the learned Tribunal framed 4 issues. Issue No.1 related to negligence. Issue No.2 related to quantum of compensation, and issue No.3 related to non- liability of the insurer, on the basis of the pleadings taken in the written-statement. I am constrained to observe, that the learned Tribunal has proceeded with a case in a wholly casual manner, inasmuch as, neither the bus is alleged to be insured, nor insurer was at all a party, nor any reply was filed by the insurer, nor any decree was claimed against the insurer, still issue no. 3 has been framed. It appears that the Tribunal had prepared a standard proforma of issues, and by filling in the blanks, it was signed in the present case. This practice is required to be stopped 3 forthwith by all the Tribunals, and is seriously deprecated. Copy of this order be circulated to all the Motor Accident Claims Tribunals, with a direction to stop this practice if they are also following it. During trial claimant examined himself, and deposed the facts alleged in the claim petition, and also deposed about the treatment administered on him. In cross- examination, he was suggested, that the bus was negotiating a down gradient, and he does not know that the brakes of the bus suddenly failed, and at that place, on one side was hillock, while on the other side, was a deep pit. Thus, it appears, that during trial, a defence was sought to be developed about sudden brake failure of the bus. The learned Tribunal decided issue No.1 in favour of the claimant, by observing, that firstly no evidence has been led in this regard by the defense, the burden of proof of sudden failure of brakes was on the defendants, even the mechanical examination report of the vehicle has also not been produced; Even driver of the bus has not been examined by the defendant. Thus, there is no material whatever on record, on the basis of which it can be concluded, that the accident occurred on account of sudden brake failure. Thus, the issue was decided against the appellant, and in favour of the claimant. 4 Arguing the appeal it was contended, that the accident was unavoidable, for the simple reason, that the bus was negotiating a steep down gradient, and at that time, suddenly the brakes failed, and it was an act of carefulness on the part of the driver, that instead of allowing the bus to fall in the pit, he chose a lesser evil of allowing the bus to dash against the hillock, otherwise far more drastic consequence would have flown, and the learned Tribunal was in error in not appreciating this aspect of the things, and the overall situation. I have heard learned counsel for the appellant, and have gone through the material on record, as nobody appeared on behalf of the respondent. In my view, may be that the accident may have occurred on account of failure of brakes. Obviously if the brakes were functioning perhaps the vehicle would have been controlled, but then, in the legal parlance, projecting this defence, tantamounts to taking a defense of mechanical failure, or mechanical brake down. Obviously this is a plea of fact, which requires a bundle of facts to be pleaded, and proved, including, that it was the latent defect, which could not be noticed by the owner and/or driver, and that the vehicle was being properly maintained from time to time, to be in a roadworthy condition, and despite taking all care, and precaution, and undertaking all requisite 5 maintenance, the brakes had failed. In the present case, significantly, as noticed above, there is no pleading whatever, even about the brakes having failed, much less the plea of mechanical failure, or mechanical brake down, had been taken in the manner as required by law. I may refer to celebrated judgment of this Court in Radha Devi & Anr. Vs. M/s. Aaluman Gyanchand & Ors., reported in 1982 ACJ 69, wherein the law in regard to the requirement of pleading, in cases of mechanical failure or mechanical brake down, the facts required to be pleaded and to be proved, has been dealt with threadbare, even by considering various judgments of Hon'ble the Supreme Court, judgments of Privy Council, and the judgments of House of Lords, so also that of Kings Bench. To be precise, judgment in Radha Devi's case fully covers the present case against the appellant. In the result, following the judgment in Radha Devi's case, I do not find any force in the appeal. The same is, therefore, dismissed. The parties shall bear their own costs. ( N P GUPTA ),J. /tarun/