IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No.69 of 2006. Date of Decision: 25.8.2009 Chuhara Ram and another …. Appellants. Versus. Smt.Krishna Devi and others …. Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? yes For the Appellants: Mr.G.R. Palsra, Advocate. For the Respondents: Mr.M.S. Guleria, Advocate. Deepak Gupta, J.(oral) This appeal by the claimants is directed against the award of the learned Motor Accident Claims Tribunal (2), Mandi (hereinafter referred to as the Tribunal) passed in Claim Petition No.27 of 1997 dated 15.12.2005 whereby he dismissed the claim petition filed by the appellants (hereinafter referred to as the claimants). The claimants are the parents of deceased Ramesh Kumar who according to them died in an accident involving tractor No.HID -353 owned by respondent No.1 Krishna Devi. According to the claimants at the time of the accident the said vehicle was being driven by respondent No.2 Dalip Singh. The claimants further alleged that the deceased was working as a mechanic getting monthly salary of Rs.1800/- and was also selling milk and earning Rs.800/- from the said source. They accordingly claimed compensation on account of the death of their son. 2 Respondents 1&2 contested the claim petition. The accident was not denied. It was also not denied that the deceased died in the accident in question. However, according to the respondents it was not respondent No.2 Dalip Singh but one Prem Chand son of Sofi Ram who was driving the vehicle. According to the respondents Prem Chand was driving the vehicle at a very slow speed but due to the steering wheel being suddenly locked the vehicle could not negotiate the turn and went off the road. The claim petition was filed in the year 1997. The written statement was also filed in the year 1997 itself but the claimants moved an application for impleading Prem Chand as a party respondent in the year 2003 and on 27th November, 2003 respondent No.3 was impleaded as a party respondent. Smt.Krishna Devi filed CMPMO No.75 of 2004 titled as Smt.Krishna Devi vs. Chuhra Ram and others in this Court against the order permitting respondent No.3 to be added as a party. The then Hon’ble Chief Justice while dismissing the CMPMO gave a direction that even if the claimants were held entitled to compensation they would not be entitled to interest from 4.10.1997 till 27.11.2003. Thereafter, Prem Chand contested the claim petition. His stand was also similar to that of respondents 1&2. The claimants did not produce any eye-witness to the accident. PW- 1 proved the post-mortem report. PW-2 is the alleged employer of the deceased and PW-3 is the father of the deceased. PW-4 proved the FIR Ext.PW-4/A and PW-5 proved the age of the deceased. Admittedly, the accident did not take place in their presence. Respondents No.2&3 appeared in the witness box as RWs 1&2 respectively. RW-1 in his statement stated that he was not driving the tractor at the time of the accident but was sitting on the same. According to him the deceased Ramesh Chand along with 3-4 other persons including one girl had 3 got on to the trolley of the tractor despite the objection of the driver Prem Chand. He admits that a criminal case was lodged against him in respect of this accident. According to him he was acquitted in the said case. RW-2 Prem Chand states that he was driving the tractor in question. According to him the tractor was on a steep incline and some school children including one girl tried to climb on to the trolley of the tractor. He once made them got off but they again got on to the trolley. There was a curve ahead and since steering wheel of the tractor got locked the tractor went off the road. According to him, the vehicle was in a slow speed. It would be important to mention that from the statement of these two witnesses it is apparent that RW-1 is the husband of the owner Krishna Devi and RW-2 is the real brother of Krishna Devi. The learned Tribunal dismissed the claim petition mainly on the ground that only an issue of negligence qua rash and negligent driving by respondent No.2 was framed and there was no issue qua rash and negligent driving by respondent No.3. He also came to the conclusion that since claimants had not examined any of the persons who were allegedly travelling in the tractor, therefore, adverse inference should be drawn against them. I have heard Sh.G.R. Palsra, learned counsel for the claimants and Sh.M.S. Guleria, learned counsel for the respondents. At the outset I may state that the approach of the learned tribunal, to say the least, was not at all a sensitive or legal approach. The respondents did not deny the accident. Even if the version of the respondents is taken to be the gospel truth then also, even according to the respondents it was respondent No.3 who was driving the vehicle. They set up the plea that the vehicle met with an accident because its steering got locked. The Apex Court in Minu B. Mehta and another vs. Balkrishna Ramchandra Nayan and another, AIR 1977 SC 1248, dealt with the 4 question as to how the defence of the accident having taken place due to mechanical defect is to be proved and on whom is the onus to prove the same. The Apex Court held as follows: “12.xxxxxxxx In this connection we may also point out that in order to succeed in a defence that the accident was due to a mechanical defect the owners will have to prove that they had taken all necessary precautions and kept the lorry in a roadworthy condition. No such attempt was made to establish that all necessary precautions were taken to keep the lorry in a roadworthy condition and that the defect occurred in spite of the reasonable care and caution taken by the owners. 13. In order to sustain a plea that the accident was due to the mechanical defect the owners must raise a plea that the defect was latent and not discoverable by the use of reasonable care. The owner is not liable if the accident is due to a latent defect which is not discoverable by reasonable care. xxxxxxxx 14. The burden of proving that the accident was due to a mechanical defect is on the owners and it is their duty to show that they had taken all reasonable care and that despite such care the defect remained hidden. xxxxxxx” This Court has followed this view in a number of cases including HRTC vs. Rajender Lal, ILR 1985 HP 865 and HRTC and others vs. Raj Kumar, 2006 ACJ 1084. The learned Tribunal did not appreciate this question in the light of the law laid down above. It is thus well established that when the owner and driver admit the accident and take up the plea of some defect in the vehicle then the onus shifts on the driver and the owner to prove that the accident took place due to the latent defect which could not be discovered despite due care and caution. Not only must the owner and driver prove that the accident occurred due to a mechanical defect but they must show that this mechanical defect was a latent ( in other words hidden) defect which they were not aware of. They must also show that they were taking due care of the vehicle and maintaining it properly despite due care and caution being exercised, the vehicle 5 developed the defect all of a sudden. The respondents have not even spoken a word in this regard. The learned Tribunal gravely erred in not taking into consideration the fact that once the respondents had admitted the accident and had admitted the death of the deceased in the accident then they were the best persons to give evidence in regard to the accident. Mere non-examination of the eye-witnesses was not fatal to the claimants’ case since the respondents had not denied the accident and had only taken the defence of a mechanical defect which it failed to prove in accordance with law. Coming to the quantum of compensation, the accident in question took place in the year 1997. It is alleged that the deceased was working as a mechanic. PW-2 has been examined to show that the deceased was getting salary of Rs.1800/- per month but this witness admits that in the register showing the attendance and salary of the deceased there are a number of over-writings. Therefore, much reliance cannot be placed on the statement of this witness. Sh.Palsra submits that he would be satisfied if the compensation payable is worked out in accordance with the principles for grant of no fault liability under Section 163-A of the Motor Vehicles Act. This Court has repeatedly held that in a case filed under Section 166 of the Motor Vehicles Act where rash and negligent driving is proved the compensation payable cannot be less than the amount payable under Section 163-A of no fault liability. Under Schedule-II of the Act relevant for the purpose of Section 163-A, the minimum income which has to be taken into consideration is Rs.15,000/- per annum which otherwise also would be reasonable keeping in view the fact that at the relevant time the minimum daily-wages of a workman were approximately Rs.50/- per day or Rs.1500/- per month. The age of the deceased was 22 years at the time of the accident. 6 In the present case if we take income of the deceased to be Rs.15,000/- per annum, multiplier of 17 is to be applied and the compensation works out to Rs.2,55,000/-. Out of this amount 1/3rd has to be deducted on account of the personal expenses of the deceased and the compensation payable workings out to Rs.1,70,000/-. In addition thereto the claimants are entitled to Rs.2000/- for funeral expenses and Rs.2500/- for loss to the estate. Therefore, total compensation works out to Rs.1,74,500/-. In view of the order passed in CMPMO No.75 of 2004 it is held that the claimants are only entitled to interest w.e.f. 28.11.2003 @ 7.5% p.a. The award amount is apportioned as follows: 1.Sh.Chuhara Ram Rs.49,500/- 2.Smt.Chamelu Devi Rs.1,25,000/- In view of the above discussion, the appeal is allowed. The impugned award of the learned Tribunal is set-aside and the claim petition filed by the claimants is allowed granting total compensation of Rs.1,74,500/- along with interest as aforesaid. CMP No.373 of 2006: In view of the final disposal of the appeal, this application is dismissed. August 25, 2009. ( Deepak Gupta ), PV Judge.