IN THE HIGH COURT OF UTTARANCHAL AT NAINTIAL Appeal Against Order No. 535 of 2007 1- Smt. Hansha Devi W/o Shri Mohan Chander @ Madan aged 2- Shri Lachhi Ram S/o Shri Shivram aged 3- Smt. Kamla Devi W/o Shri Lachhi Ram All R/o Village Dewrapani Post Office Bhatrojkhan Tehsil Bhikiyasen, District Almora ……. Appellants Vs 1- Khazan Chandra Paladiya Registered owner of Jeep No. U.P. 01/5032 S/o Radha Kishan Padaliya R/o Padaliya Niwas Bhikiyasen Almora 2- Manager The New India Assurance Company Ltd., Khurrana Building, Nainital Road, Haldwani 3- Prakash Singh Garakoti S/o Diwan Singh R/o Village Ghatti, P. S. Bhatrojkhan, District Almora (Driver) …… Respondents And Appeal Against Order No. 534 of 2007 1- Nand Ram S/o late Shri Bacchi Ram 2- Smt. Kamala Devi W/o Nand Ram Both R/o Village Dewrapani, Post Office Bhatrojkha, Tehsil Bhikiyasen, District Almora ……. Appellants Vs 1- Khazan Chandra Paladiya Registered owner of Jeep No. U.P. 01/5032 S/o Radha Kishan Padaliya R/o Padaliya Niwas Bhikiyasen Almora 2- Manager The New India Assurance Company Ltd., Khurrana Building, Nainital Road, Haldwani 3- Prakash Singh Garakoti S/o Diwan Singh R/o Village Ghatti, P. S. Bhatrojkhan, District Almora (Driver) … Respondents Sri Rajesh Joshi, learned counsel for the appellants. Sri T.A. Khan, learned counsel for respondent no. 2 Dated: March 14, 2008 Hon’ble B.C. Kandpal, J. Both these appeals arise against the claim petitions filed in the same accident and similar controversy is involved, therefore, they are being decided by this common judgment. A.O. No. 535 of 2007, under Section 173 of Motor Vehicles Act, 1988, has been filed by the claimants-Hansha Devi and others, who are legal representatives of the deceased-Mohan Chandra @ Madan, who died in motor accident, against the judgment and award dated 23.10.2007 passed by Motor Accident Claims Tribunal/District Judge, Almora, in M. A. C. T. No. 5 of 2007, Smt. Hansha Devi & others vs. Khazan Chandra Padaliya & others. A. O. No. 534 of 2007, under Section 173 of Motor Vehicles Act, 1988, has been filed by the claimants-Nand Ram and another, who are legal representatives of the deceased-Suresh Chandra @ Sonu, who died in motor accident, against the judgment and award dated 23.10.2007 passed by Motor Accident Claims Tribunal/District Judge, Almora, in M. A. C. T. No. 4 of 2007, Nand Ram vs. Khazan Chandra Padaliya & others. Brief facts of the case are that on 1.3.2007, at about 4.30 p.m. Mohan Chandra @ Madan and Suresh Chandra @ Sonu (deceased) were coming back to his house from Jeep No. U.P. 01/5032. The driver was driving the vehicle rashly and negligently. Due to rash and negligent driving, the vehicles fell in a Nala at Dewlapani and deceased- Mohan Chandra @ Madan died on the spot itself while deceased-Suresh Chandra @ Sonu sustained grievous injuries, consequently he died in the way to the Hospital. It has been alleged that Mohan Chandra @ Madan (deceased) was 28 years old and Suresh Chandra @ Sonu (deceased) was 24 years old respectively at the time of accident. It has also been alleged that both the deceased were mason and were earning Rs. 4000/- per month. The owner of the offending jeep-Khazan Chandra Padaliya has filed written statement refuting the contents of the claim petition. He took additional plea that the driver of the offending jeep was not responsible for the accident. The accident did not take place due to rash and negligent driving of the driver. The vehicle in question was insured with the Insurance Company (New India Assurance Company) and the vehicle was being plied with all valid papers, at the time of accident. Therefore, the Insurance Company is liable to pay the compensation. The insurer of the offending jeep (New India Insurance Company) filed written statement denying the contentions of the petition. It took additional plea that Insurance Company did not receive any information under Section 158(6) of Motor Vehicles Act, 1988. The petition is barred by provision of Section 134(c) of the Act. No information was given to the Insurance Company. The driver of offending jeep was not holding the valid and proper licence, hence, the Insurance Company is not liable to pay any amount of compensation. The vehicle was being plied in contravention of terms and conditions of the insurance policy. The petition has been filed in collusion with the owner of the vehicle. The driver of the offending Jeep (Prakash Singh Garakoti) filed his written statement refuting the contents of the claim petition. He took additional plea that at the time of accident vehicle in question was insured with the Insurance Company. The vehicle was not being plied with rashly and negligently, hence, he is not liable to pay any amount of compensation. The Tribunal, on the basis of pleadings adduced by the parties, framed following issued: a. Whether on 1.3.2007 at about 4.30 p.m. at Ramnagar-Ranikhet Road when the deceased Mohan Chandra alias Madan/Suresh Chandra @ Sonu Ram was travelling in Jeep No. U.P. 01/5032 as passenger, the same was fell in the Khudd due to rash and negligent driving of the driver in which Mohan Chandra alias Madan Ram/Suresh Chandra @ Sonu died? b. Whether on the aforesaid date, time and place, the driver was not holding a valid licence? c. To what relief, if any, is the claimant is entitled? The learned Tribunal after having perused the entire material available on record and hearing learned counsel for the parties, dismissed the claim petitions under Section 166 of Motor Vehicle Act and allowed the same under Section 140 of Motor Vehicles Act, further awarded a sum of Rs. 50,000/- (fifty thousand) in favour of claimant no. 1-Smt. Hansi Devi (wife of the deceased), in MACT No. 5 of 2007, and in favour of claimants no. 1 and 2-Nand Ram and Smt. Kamala Devi, in MACT No. 4 of 2007, under the head of ‘No fault liability’, vide judgment and award dated 23.10.2007. Feeling aggrieved by the aforesaid judgment and award, the claimants have preferred this appeal before this Court. Heard Sri Rajesh Joshi, learned counsel for the appellants, Sri T. A. Khan, learned counsel for respondent no. 2/New India Assurance Company Ltd. and perused the record. Learned counsel for the appellants has submitted that the Tribunal did not rely on the dictum of ‘res ipsa loquitur’ as the circumstances in this case itself speak about rash and negligence on the part of the driver, who was driving the offending jeep at the time of accident. He has further submitted that the Tribunal did not consider this aspect of the matter and has rejected the petition on technical ground, which is not tenable in the eye of law. Learned counsel for respondent no. 2 i.e. New India Assurance Company Ltd.-Sri T.A. Khan has made the rival contention by stating that it was the initial burden of the claimants to prove the rash and negligent driving on the part of driver of offending jeep by adducing the cogent evidence. He has further submitted that the claimants did not produce any of the eye- witnesses of the accident which could have suggested as to whether the accident took place on account of rash and negligent driving of the driver of the offending jeep or for any other reason. The record shows that the claimants in this case has filed the copy of the First Information Report and copy of post-mortem report of the deceased as well as the charge sheet submitted by the police under Section 279/337/304-A I.P.C. against the driver of the offending jeep as well as site plan prepared by the police during the course of investigation. These papers primarily indicate that after lodging the First Information Report with regarding to the accident the police investigated the matter and submitted the charge sheet against the driver of the offending jeep. The learned Tribunal has ignored all these documents by making an observation that the charge sheet submitted by the police is not the conclusive proof of rash and negligent driving of the vehicle. The approach of the learned Tribunal in coming to this conclusion and rejecting the claim petition under Section 166 of Motor Vehicle Act, appears to be erroneous. The Hon’ble Apex Court in the case of Pushpabai Parshottam Udeshi and others vs. M/s. Ranjit Ginning & Pressing Co. Pvt. Ltd. & another, reported in AIR 1977 SC 1735, has held as under: “6. The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is cause to the Plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by_applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident “speaks for itself’ or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Salmond on the Law of Torts (15th Edn.) at p. 306 states: “The maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused”. In Halsbury’s Laws of England, 3rd Edn., Vol. 28, at p. 77, the position is stated thus: “An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendant’s negligence, or where the event charged a; negligence ‘tells it own story’ of negligence on the part of the defendant, the story so told being clear and unambiguous”. Where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part. For the application of the principle it must be shown that the car was under the management of the defendant and that the accident is such as in ordinary course of things does not happen if those who had the management used proper care. Applying the principles stated above we have to see whether the requirements of the principle have been satisfied. There can be no dispute that the car was under the management of the company’s manager and that from the facts disclosed by PW 1 if the driver had used proper care in the ordinary course of things the car could not have gone to the right extreme of the road, dashed against a tree and moved it a few inches away. The learned counsel for the respondents submitted that the road is a very narrow road of the width of about 15 feet on either side of which were fields and that it is quite probable that cattle might have strayed into the road suddenly causing the accident. We are unable to accept the plea for in a country road with a width of about 15 feet with fields on either side ordinary care requires that the car should be driven at a speed in which it could be controlled if some stray cattle happened to come into the road. From the description of the accident given by PW 1 which stands unchallenged the car had proceeded to the right extremity of the road which is the wrong side and dashed against a tree uprooting it about 9 inches from the ground. The car was broken on the front side and the vehicle struck the tree so violently that the engine of the car was displaced from its original position one foot on the back and the steering wheel and the engine of the car had receded back on the driver’s side. The car could not have gone to the right extremity and dashed with such violence on the tree if the driver had exercised reasonable care and caution. On the facts made out the doctrine is applicable and it is for the opponents to prove that the incident did not take place due to their negligence. This they have not even attempted to do. In the circumstances we find that the Tribunal was justified in applying the doctrine. If was submitted by the learned counsel for the respondents that as the High Court did not consider the question this point may be remitted to the High Court. We do not think it necessary to do so for the evidence on record is convincing to prove the case of rash and negligent driving set up by the claimants. In view of the aforesaid decision of the Hon’ble Apex Court as well as the evidence available on record, the learned Tribunal should have taken into consideration the dictum of ‘res ipsa loqiotir’. The learned Tribunal further, if was of the opinion that the evidence, to come to a definite conclusion, was not sufficient, could have directed the parties to produce the cogent evidence in order to show as to whether the accident took place on account of rash and negligent driving of the driver or not. It appears to me that the Tribunal has shirked from its liability and in a very hasty manner has reached to the conclusion that the petition was liable to be rejected under Section 166 of Motor Vehicles Act. My attention has been drawn by learned counsel for Insurance Company that person, who lodged the First Information Report (Bhagat Singh) was travelling in jeep in question at the time of accident. Certain other persons have also been shown to be the eye-witnesses in the First Information Report, who were also travelling in the offending jeep at the time of accident and they sustained injuries on their person. Thus, the learned counsel for Insurance Company has submitted that the claimants could have produced any of those eye-witnesses to establish this aspect that the accident took place on account of rash and negligent driving of the driver of offending jeep in question. He has further submitted that it is true that dictum of ‘res ipsa liquitur’ is applicable in a case of fatal accident, but that dictum is to be applied where there is no direct evidence or none of the eye-witnesses of the accident is available. But once the eye-witnesses of the accident are available and those witnesses are alive, then certainly the claimants should produce those witnesses in order to establish that the accident took place on account of rash and negligent driving of the offending vehicle. As I have already observed earlier that neither the Tribunal took the burden to direct any of the parties to adduce the cogent and reliable evidence to come to the conclusion that the accident in fact took place on account of rash and negligent driving of driver of offending jeep nor any of the parties had cared to adduce the evidence before the Tribunal in this regard. Under the aforesaid circumstance, I think that it is a fit case of remand with the direction that the Tribunal should direct the parties to adduce the evidence in order to show as to whether the accident took place on account of rash and negligent driving of driver of offending jeep or for any other reason, and thereafter, should decide the petition in accordance with law. With the aforesaid observations, the appeals are allowed. The impugned judgment and award passed by the Tribunal is set aside. The matter is remanded back with the direction that the Tribunal should direct the parties to adduce the evidence in order to show as to whether the accident took place on account of rash and negligent driving of driver of offending jeep or for any other reason, and thereafter, should decide the petition in accordance with law. Let a copy of this judgment by placed in the file of A.O. No. 534 of 2007. (B.C. Kandpal, J.) SP