IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO (MVA) No.:189/2004 Decided on: 15.7.2008 State of Himachal Pradesh and another. …Appellants. Versus Ramesh Chauhan and another …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. For the Appellants : Mr. Rajinder Dogra, Additional Advocate General. For the respondents : Mr. Shrawan Dogra, Advocate for respondent No.1. Mr. S.D. Gill, Advocate for respondent No.2. Rajiv Sharma, J. (oral) This FAO (MVA) has been filed against the award dated 5.7.2002 passed by the Motor Accident Claims Tribunal-II, Shimla in MAC No. 26- S/2 of 2000. The brief facts necessary for the disposal of this FAO are that respondent No.1 filed a claim petition under section 166 of the Motor Vehicles Act, 1988 for the grant of compensation on account of accident, which took place on 4.7.1999 at about 3.45 A.M. near Police Station Nurpur, District Kangra, H.P. The injured was travelling in the Mahindra jeep bearing No.HP-37-2491 alongwith Dy. S.P. and other constables. 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 Respondent No.2, Mohinder Singh was driving the jeep. The jeep met with an accident and respondent No.1 received injuries. He was taken to Civil Hospital, Dharamshala where he remained admitted with effect from 4.7.1999 to 19.7.1999. Thereafter he received treatment at PGI, Chandigarh and IGMC, Shimla. The claim petition was resisted by the appellants and respondent No.2. The case set out by the appellants was that the accident took place due to mechanical defect. The learned Motor Accident Claims Tribunal awarded a sum of Rs. 85,000/- by way of compensation to respondent No.1. This FAO has been filed against the award dated 5.7.2002. The learned Additional Advocate General strenuously argued that the accident has taken place on 4.7.1999 due to mechanical defect and the appellants are not liable to pay any compensation to respondent No.1. He has denied that the jeep in question was being driven in a rash and negligent manner by respondent No.2. He also contended that the claimant has not suffered any pecuniary loss and a sum of Rs. 85,000/- awarded by the learned Motor Accident Claims Tribunal is on the higher side. Mr. Shrawan Dogra, Advocate appearing on behalf of respondent No.1 has supported the award dated 5.7.2002. Mr. S.D. Gill, Advocate appearing on behalf of respondent No.2 has adopted the arguments of the learned Additional Advocate General. I have heard the learned counsel for the parties and perused the record carefully. The accident has taken place on 4th July, 1999 at about 3.45 A.M. Respondent No.1 has received injuries and he remained admitted in Civil Hospital, Dharamshala with effect from 4.7.1999 to 19.7.1999. Respondent No.1 has appeared as PW-1 and has deposed that the 3 accident in question has taken place due to rash and negligent act of respondent No.2. He has tendered copy of FIR Ex.PW-1/A. The learned Additional Advocate General has also contended that the accident has taken place due to mechanical defect in the jeep. It was necessary for the appellants to establish by leading cogent evidence that they had taken all necessary precautions and the vehicle was in road worthy condition. Respondent No.2 has not deposed that he had taken due care and caution to ascertain whether the jeep in question was in road worthy condition or there was any latent and patent defect in the jeep. It is established from the statement of PW-1 read with contents of FIR that the accident has taken place due to negligence of respondent No.2. Their Lordships of the Hon’ble Supreme in Minu B. Mehta and another versus Balkrishna Ramchandra Nayan and another, AIR 1977 SC 1248 have held as under: “Mr. Nariman, the learned counsel appearing for the owners submitted that the High Court did not hear arguments on the question whether the accident took place due to rash and negligent driving of the lorry and therefore the question will have to be gone into by this Court or remanded for fresh disposal. We find that the High Court has given a clear finding in paragraph 30 of its judgment that the Tribunal rightly disbelieved the plea and held that it was the driver who was negligent and that the fully concur with the reasons and findings of the learned Member of the Tribunal. In the face of the clear finding we are unable to accept the plea of the learned counsel that this question was not gone into by the High Court. We find ourselves in complete agreement with the finding of the Tribunal and the High Court that it was due to rash and negligent driving of the lorry that the car in which the applicant and Malati M. Deshmukh were travelling was hit causing injuries to both of them. We accept the testimony of the doctor and 4 D. W. 4 Jawkar that the lorry crossed the road dividers, ran into the wrong side and hit the car which was driven by the applicant. We have no hesitation in accepting the concurrent findings of the High Court and the Claims Tribunal that the accident was due to the rash and negligent driving of the lorry driver. We have also no hesitation in rejecting the testimony of the defence that there was some mechanical defect which resulted in the tie rod end breaking. We find ourselves in agreement with the reasoning of the Claims Tribunal that the evidence on the side of the owners is contradictory and the testimony of the expert destroys the plea of any mechanical defect set up by them. 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. 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. The law on this subject has been laid down in Henderson v. Henry E. Jenkins & Sons, 1970 AC 282. In that case the lorry driver applied the brakes of the lorry on a steep hill put they failed to operate. As a result the lorry struck and killed a man who was emerging from a parked vehicle. The defence was that brake failure was due to a latent defect not discoverable by reasonable care on driver's part. It was found that the lorry was five years old and had done at least 150,000 miles. The brakes were hydraulically operated. It was also found after the 5 accident that the brake failure was due to a steel pipe bursting from 7 mm. to 1 mm. The corrosion had occurred where it could not be seen except by removing the pipe completely from the vehicle and this had never been done. Expert evidence showed that it was not a normal precaution to do this if, as was the case, the visible parts of the pipe were not corroded. The corrosion was unusual and unexplained. An expert witness said it must have been due to chemical action of some kind such as exposure to salt from the roads in winter or on journeys near the sea. The House of Lords held that the burden of proof which lay on the defendants to show that they had taken all reasonable care had been discharged. The defect remained undiscovered despite due care. As the evidence had shown that something unusual had happened to cause this corrosion it was necessary for the defendants to show that they neither knew nor ought to have known of any unusual occurrence to cause the breakdown. (see Bingham's Motor Claims Cases Seventh Ed., page 219). 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. In this case in the written statement all that is pleaded is that the axle brake ring of the lorry came out and the driver lost control of the motor lorry and that the defect can develop in a running vehicle resulting in the driver's losing control of the steering wheel. Thought it was stated that all precautions were taken to keep the lorry in a roadworthy condition it was not specifically pleaded that the defect i.e. the axle brake ring coming out, is a latent defect and could not have been discovered by the use of reasonable care. This lack of plea is in addition to the lack of evidence and the fact that the defence set up has been rightly rejected by the Tribunal.” 6 The learned Motor Accident Claims Tribunal has come to a just conclusion on the basis of the evidence led by the parties that the accident in question has taken place due to rash and negligent driving of respondent No.2. Now, the Court has to consider the last submission of the Additional Advocate General that a sum of Rs. 85,000/- awarded by the learned Motor Accident Claims Tribunal is on the higher side. The claimant remained under treatment in Civil Hospital, Dharamshala with effect from 4.7.1999 to 19.7.1999. The learned Motor Accident Claims Tribunal after taking into consideration the period, the claimant remained admitted in Civil Hospital, Dharamshala with effect from 4.7.1999 to 19.7.1999 and the expenses made by him, has correctly awarded a sum of Rs. 20,000/- towards this head. Similarly, the learned Motor Accident Claims Tribunal has correctly awarded a sum of Rs.65,000/- on account of pain and suffering, loss of amenities of life, discomfort and inconvenience. In view of these observations, there is no merit in the appeal and the same is dismissed. There shall be no order as to costs. July 15, 2008 (Rajiv Sharma ), J. *awasthi*