Road Transport Corporation J and K State vs Presiding Officer, Motor Accidents Claims Tribunal and Others

A.S. Anand, C.J.—This appeal is directed afgainst an award of the Motor Accidents Claims Tribunal, Srinagar, dated 29-7-1980,

awarding Rs. 30,000.00 as compensation to respondent No. 2 in a claim petition filed against the appellant and respondent No. 3 arising out of a

vehicular accident in which Mohd. Yaqoob aged 11 years, the son of respondent No. 2, lost his life. The appeal has been preferred by the Road

Transport Corporation of J and K State. During the pendency of the appeal, respondent No. 3 died and since, the award was not against him,

vide order of the court dated 1-8-1985, his name was deleted from the array of the respondents.

On 18-9-1976, an accident took place in village Larkipora, tehsil Doru, District Anantnag, in which Mohd. Yaqoob son of respondent No. 2,

was killed. The offending vehicle No. JKY-751 was owned by the appellant J and K State Road Transport Corporation and respondent No. 3

(since dead) was its driver. Respondent No. 2 filed a claim petition claiming an amount of Rs. 1,55,400-00 as compensation. The claim petition

was resisted and both the owner and the driver filed their written objections in which inter-alia the factum of the accident was denied but it was

pleaded in the alternative that the accident, in my case, had not occurred due to any rash or negligent driving of respondent No. 3 and had been

caused due to mechanical defect which was beyond the control of respondent No. 3. The following issues were raised in the case:

(1) Was the accident caused because of the rash and negligent act of the non-applicant No. 1 ? O.P. Applicant.

(2) In case issue No. 1 is proved in affirmative to how much compensation the applicant is entitled and from whom and in what proportion ? O.P.

Applicant.

(3) Relief?

The claimant, respondent No. 2 examined Gul Mohd. Ganai, Ghulam Ahmad Dar, Ghulam Ahmad Rather, Ghulam Mohd. Kutey and Gani

Rather besides appearing in the witness box himself. The respondents to the claim petition, on the other hand, examined Sarup Narian Kak and

Ghulam Mohd. Ganai, Respondent No. 3, the driver of the offending vehicle, also appeared as his own witness.

The fact that the accident took place on the date and the time alleged in the claim petition at Larkipora has not only been deposed to by the

witness produced on behalf of the claimant but has also been admitted by respondent No. 3, the driver of the offending vehicle himself in his own

deposition. Ghulam Mohd. Ganai, a witness of the respondent, also admitted the factum of the accident. Meakly, the witness of the contesting

respondents, however, feigned ignorance as to whether the deceased had been hit and injured in the accident. It has, however, been deposed to

by both the witnesses of the respondents and respondent No. 3 himself that the accident had been caused because of the bursting of one of the

tyres of the offending vehicle No. JKY-751.

The Motor Accidents Claim Tribunal, Srinagar, after a careful appraisal of the evidence decided issue No. 1 in favour of the claimant and under

issue No. 2 awarded an amount of Rs. 10,000/- as compensation to respondent No. 2 which was made payable by the appellant. Aggrieved, the

appellant has filed this appeal.

That the appellant was the owner of the vehicle has not been questioned and rightly so. The evidence led in the case by the parties has

established that the accident was caused by the offending vehicle and that Mohd. Yaqoob was hit and killed when the said vehicle swerved to one

side and hit Mohd. Yaqoob who was walking alongwith some cattle on the extreme side of the road. It is not necessary for me to reproduce the

evidence of the witnesses examined in the case because, learned Counsel for the appellant, did not question and rightly either the factum of the

accident or that the deceased, Mohd. Yaqoob, was hit by the offending vehicle and had died as a result of the injuries sustained by him in the

accident. The case of Mr. Dulloo, learned Counsel for the appellant, however, which he vehemently argued was that the accident had not taken

place due to the rash or negligent driving of the offending vehicle by respondent No. 3 but on account of the bursting of the tyre which was beyond

the control of respondent No. 3 and, therefore, no liability could be fastened on the J and K State Road Transport Corporation in respect of the

accident. Mr. Hagroo appearing for the claimant respondent No. 2, on the other hand, seriously controverted the stand taken by Mr. Dulloo and

argued that it was the paramount duty and obligation of the appellant to maintain its vehicle in a road-worthy condition by proper maintenance and

the fact that the appellant had led no evidence to show that it had exercised due care for the proper maintenance of the vehicle and despite that

care, the bursting of the tyre took place on account of some latent defect, it does not lie in the mouth of the appellant now to say that the accident

had not been caused as a result of the negligence on the part of the appellant.

From the material on the record, it transpires that it is an admitted case of the parties that the accident took place due to the tyre burst of the

vehicle and that it was on account thereof that the vehicle swerved to one side and the deceased was hit and later on died as a result of the injuries

sustained in the accident. The question, therefore, that comes up for consideration of this court is whether this position absolved the appellant of the

liability to pay compensation and, whether the mere bursting of the tyre was a defence to a plea of negligence. To cases of this type, in my opinion,

the doctrine of res ipsa loquitur is attracted. This doctrine which means ""thing speaks for itself"" is a rule of evidence affecting the onus of proof. The

essence of the doctrine is that an event which, in the ordinary course of things was more likely than not to have been caused by negligence, would

by itself be proof of negligence unless proved to the contrary by the defaulting party.

In Mela Ram v. Mohan Singh, 1978 Accidents Claims Journal 381, which was a case of an accident due to a tyre burst, it was held by the

Punjab and Haryana High Court that to such a case the doctrine of res ipsa loquitur was applicable and the burden was on the respondents to

disprove negligence on their part. In that case the truck driver was held negligent because the respondent in the case had led no evidence to

establish that the tyre which had burst was in a good condition and had been examined periodically to ensure its road worthiness. Again, in 1980

Accidents Claims Journal 193, which was also a case of accident occurring due to the bursting of the tyre of the vehicle, the Madras High Court

held :-

As it is a public utility service run for the convenience of the public, it is the paramount duty and obligation of the respondent to maintain buses in a

road worthy condition by proper maintenance and upkeep and devising periodical checks and counter checks by the supervisory staff to ensure its

road worthiness and safety. If the accident had occurred inspite of these precautionary measures and the bursting of the tyre was on account of

latent defect which could not have been discovered by reasonable care and deligence, only then no liability can be fastened on the respondent,

and not otherwise.

Thus, it follows that in cases of this type, the onus is on the owner/driver of the vehicle to establish by cogent evidence, that despite taking

precautionary measures to check mechanical defects by proper maintenance and periodical checks and counter checks, the defect could not have

been discovered be reasonable care and deligence and in case it is not so established, then the allegations of negligence would ipso facto stand

established.

Turning to the facts of the present case, there is no evidence brought on the record by the appellant to show to the total mileage done by the

tyre which had burst. No witness has come-forth to say on behalf of the appellant that the tyre in question was periodically examined by a

mechanic with a view to know its conditions. The solitary statement of respondent No. 3, driver of the offending vehicle, who stated that the

vehicle had been checked even one day prior to the accident by some mechanic who had found that the tyre was in a good condition is not

sufficient to discharge the onus of negativating negligence. The mechanic, who according to the deposition of the driver had examined the vehicle

and the tyres of the vehicle one day prior to the accident was not examined by the appellant for reasons best known to it. Even his report was not

brought on record, an inference would, therefore, be available to be drawn against the appellant that had the mechanic been examined, his

evidence would have gone against the appellant. In the absence of any evidence led by the appellant to show that it had taken proper care to

ensure the road worthiness of the vehicle which the case of a public utility service was its paramount duty and obligation and that the bursting of the

tyre took place on account of some latent defect which was not discovered despite reasonable care and deligence having been taken, there is no

escape from the conclusion that the doctrine of res ipsa loquitur applies and the accident, in the present case, must be attributed to the negligence

of the driver and the owner of the offending vehicle. Issue No. 1, in my opinion, was, therefore, correctly decided by the learned Motor Accidents

Claims Tribunal in favour of the claimant and against the owner and driver and I confirm the finding on that issue.

Coming now to issues No. 2 and 3, so far as the question of compensation is concerned, the Motor Accidents Claims Tribunal after relying on

some decided cases and on the basis of evidence led in the case awarded a sum of Rs. 10,000/- as compensation together with interest @ 6% per

annum from the date of passing of the award to the date of actual payment, besides allowing Rs. 500/- as the costs. In the face of the evidence led

by the claimant, respondent No. 2, and particularly the practically unchallenged statement of the claimant that he was to a large extent dependent

on the income of his son, aged 11 years, who used to tether cattle of his neighbours on remuneration which statement has also been corroborated

by the other witnesses examined on behalf of the claimant, no challenge to the quantum of compensation, was rightly raised by learned Counsel for

the appellant. Mr. Hagroo, learned Counsel for the respondent No. 2 (the claimant), however, asserted that the claimant, respondent No. 2, had

filed cross-objections within time and that the compensation deserved to be enhanced. A perusal of the interim order of 27-1-1982, shows that the

appellant had taken note of the cross-objections but had filed no objections.

I have carefully considered the totality of the circumstances of this case and have perused the record with regard to these issues. The Motor

Accidents Claims Tribunal while awarding Rs. 10,000 as compensation directed interest @ 6% per annum from the date of the award to the date

of actual payment. Interest @ 6% per annum to me appears to be too low keeping in view the prevailing bank rates and the for ever diminishing

value of the rupee. The interest should also have been allowed from the date the claim petition was filed and not from the date of the award. I,

therefore, while confirming the amount of compensation at Rs. 10,000/- direct that the same shall be paid with interest @ 9% per annum from the

date when the claim petition was initially filed before the Motor Accidents Claims Tribunal i.e. 6th December, 1976 till the entire payment is made

by the appellant, J & K Road Transport Corporation The operation of the award had been stayed vide order of learned Single Judge of this court

on November 14, 1980 in CMP. No. 236 of 1980 and that stay order shall now stand vacated forthwith.

As a result of the above discussion the appeal fails and is hereby dismissed. The cross-objections are allowed to the extent indicated above.

The parties shall, however, bear their own costs in so far as this appeal is concerned.