Balkrishna vs Mahabaliprasad Tiwari and Others

This is an appeal filed by the Appellant against an order of the Motor Accidents Claims Tribunal, Indore, dismissing the claim petition filed by him for compensation.

On 29th March 1963, at about 9 P.M., on the road coming from Nandanagar, Indore, and leading to Malwa Mills, a car bearing No. MPE 3982 belonging to the Respondent No. 2 was coming from Nandanagar and going towards Malwa Mills. The Appellant was coming from Malwa Mills, along with his friend Vasant, and was going to Nandanagar. Before the Appellant reached the Patnipura, Chouraha, the rear wheel of the right side of the car flew off the car and dashed against the right leg of the Appellant the Appellant fellow The car then stopped at a distance of about thirty feet from the place of occurrence. As a result of this accident, the Appellant sustained a fracture in the right leg and was removed to the M.Y. Hospital, Indore, where he was put under plaster. He has been permanently disabled due to this accident, and is not in a position to pursue his daily work in the manner in which he used to pursue. The Appellant, therefore, filed a petition before the Tribunal claiming compensation amounting to Rs. 19,000/- .

The Claims Tribunal came to the conclusion that as a result of the injuries sustained by him the Appellant has been permanently disabled. But it held that the car was not being driven either rashly or negligently and, therefore, disallowed the claim petition.

So far as the person driving the car is concerned there appears to be some controversy. According to the findings of the Tribunal, it has not been established as to who was driving the car. But regarding the ownership of the car, there appears to be no doubt that it was owned by the Respondent No. 2, who is the son of the Respondent No. 1. As regards the insurance company (Respondent No. 4) the finding of the Tribunal is that on the date of the accident the car was not insured and, therefore, the Respondent No. 4 is not liable.

Mr. Puntambekar, Learned Counsel for the Appellant contended that the finding of the Tribunal is not correct when it came to the conclusion that no negligence is established. According to the Learned Counsel, the wheels of a car do not fly off; that the flying of the Wheel itself raises a presumption ; and that, therefore, the burden of proving that the car was in good condition and all the precautions that the Respondents were expected to take were taken was on the Respondents but they did not choose even to step into the witness box to give their statements. Learned Counsel, therefore contended that in these circumstances the finding of the lower court about negligence could not be upheld. In support of his contention, Learned Counsel relied on Jankibai v. Lunaji 1954 N.L.R. 403 , Municipal Corporation of Delhi Vs. Subhagwanti and Others, and Chimaswami and Another Vs. M. Vijayal and Others,

Ordinarily, the burden of proving negligence is on the person who alleges it. In the present case, the hind-wheel of the car flew off. It is well-known that ordinarily it does not so happen. But if it was as a result of some unavoidable circumstance, it was for the Respondents to establish it. In such a case, presumption of negligence would arise unless the Respondent pleads and proves an unavoidable circumstance resulting in the accident. In Jankibai v. Lunaji (supra) it was held that in a case of accident due to toppling over of a bus, a presumption would arise that such an accident does not take place in normal circumstances and, therefore, it will be within the special knowledge of the Defendant to plead and prove the circumstances establishing the absence of negligence. This principle has been considered by their Lordships of the Supreme Court in Municipal Corporation, Delhi v. Subhagwanti (supra). It was observed by their Lordships that:

It is true that the normal rule is that it is for the'' Plaintiff to prove negligence and not for the Defendant to disprove it. But there is an exception to this rule which applies where the circumstances surrounding the thing which caused the damage are at the material time exclusively under the control or management of the Defendant or his servant and the happening is such as does not occur in the ordinary course of things without negligence on the Defendant''s part.

In the light of this principle it is very clear that in the circumstances as exist in the preset case when the rear of the car flew off the car, the burden would be on the owner of the car to establish such circumstances as would disprove negligence on his part. This principle has been clearly stated in Halsbury''s Laws of England (2nd ed. vol. 23 at p. 671) as follows:

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 immediately arising from them is that the injury complained of was caused by the Defendant''s negligence, or where the event charged as negligence ''tells its own story of negligence on the part of the Defendant, the story so told being clear and unambiguous. To these cases the maxim res ipsa loquitur applies. Where the doctrine applies, a presumption of fault is raised against the Defendant, which if he is to succeed in his defence, must be overcome by contrary evidence, the burden on the Defendant being to show how the act complained of could reasonably happen without negligence on his part.

In these circumstances, the finding of the lower court that no negligence has been established on the part of the Respondents deserves to be set aside.

So far as the quantum of damages in concerned, the trial court estimated Rs. 300/- as expenses incurred in the medical treatment of the Appellant. The Appellant claimed Rs. 1500/- for loss that he sustained because of his not being able to appear in the examination in which he was going to appear. The trial court held the amount claimed as reasonable. As regards the claim on account of the Appellant''s permanent disability in his right leg, the trial court held Rs. 3,000/- as proper compensation therefor. Similarly the trial court held Rs. 1,000/- as proper compensation for the Appellant''s suffering physical pain due to injuries. Before us, Mr. Chafekar, Learned Counsel for the Respondents Nos. 1 and 2, contended that items like medical expenses, loss due to failure in appearing at the examination and loss due to failure in performing his duties are in the nature of damages which could be proved by positive evidence and that as there is no evidence in regard to them, the claim could not be justified. To us it appears that the amount of Rs. 3,000/- as compensation for the permanent disability and Rs. 1,000/- for physical pain and suffering are reasonable. As to the amount of Rs. 1,500/- as loss due to the failure of the Appellant in appearing at the examination, there is no evidence about it and the claim cannot be allowed. The amount of Rs. 300/- for medical expenses allowed by the trial court also appears to be justified.

Under these circumstances, the appeal deserves to be allowed and is consequently allowed. The Appellant is awarded damages, as detailed above, to the tune of Rs. 4,300/- . The Appellant shall also get the costs of this appeal. Counsel''s fee is Rs. 150/- if certified.