M. C. JAIN, J. - (1.) THESE two appeals against rejuction of claims by the Motor Accident Claims Tribunal, Bhilwara, arise out of the some accident. It is convenient to dispose them of together, so they are being disposed of by this common judgment.
(2.) THE facts of the two cases lie in narrow compass. Smt. Radha Devi in claim case No. 10 of 1969 and Shri Mohandass a minor, in claim case No. 11 of 1969 were travelling in bus No. RJE 685. THE bus was plying from Vijainagar to Shahpura via Devalia Arwar and both the claiments were going to Shahpura. Though the road was a metalled road, but at a distance of about 5 miles from Shahpura, the road was not good. THEre were pot-holes in the road and over the soiling of the road pabbles were only pressed THE condition of the road was not such on which the vehicle could be driven fast, still the driver of the bus Chandra Singh drove the bus with great speed and rashly so much so that the bus went out of control and the bus went off the road on the left side. It crossed a deep pit and also a mount and thereafter it stopped. As a result of sudden fall in the pit and jerks and jolts, the claiments sustained injuries. Four teeth and three molars of Radha Devi fell and some teeth of Mohandass also fell. Both of them sustained the following injuries: - INJURIES OF SMT. RADHA DEVI: (1) Fractures-cum-dislocation of the right lower inciser tooth. (2) Fracture-cum-dislocation of the left loweri inciser tooth. (3) Fracture-cum-dislocation of the last lower pre-moler tooth. (4) Contusion l-1/2"x l" on the right side of the chin. (5) Contusion 1" x 1/2" on the left side of the chin. (6) Adrasion-cum-contusion 3-1/2" x 2" on the enterior side upper part of the right leg. (7) Contusion 2"x 1" on the enterior side mid part of the left leg. (8) Abrasion-cum-contusion on the sole of the left foot. INJURIES OF MOHANDASS: (1) Fracture-cum-dislocation of the upper right inciser tooth. (2) Fracture-cum-dislocation of the upper right canine tooth. (3) Contusion 1-1/2" x l" on the left side of the forehead. Smt. Radha Devi claimed Rs 300/- by way of special damages and Rs. 10,000/ - as general damages and Mohandass claimed Rs. 150- as special damages and Rs. 5,000/- as general damages. The claims were filed against the owners of the bus and the Insurance Company. The owners of the bus non-applicant Nos. 1, 2 and 3 submitted their joint reply, in which the averments of the applications were denied and it was stated that there was no rashness or negligence on the part of the driver. The bus was not driven with speed. The road, where the accident took place, was such that the bus could not be driven with speed. The road was under construction. It was also stated that there is possibility of the accident on account of bad condition of the road. In the additional pleas it was stated that the accident occurred due to breaking of the kingpin. As the accident did not occur on account of rashness and negligence on the part of the driver, so the claiments are not entitled to any damages. The Insurer as well filed the reply on the same line and further stated that the liability of the Insurer is only upto Rs. 2,000 /- in each case. Necessary issues were framed in both the claim cases. The Tribunal recorded the evidence in both the cases. Issue No. 1 in both the cases related to driving of the bus rashly and negligently by the driver. This issue was decided by the Claims Tribunal against the applicants and it was observed that looking to the nature of the accident, the bus went out of control due to some mechanical defect beyond the control of the driver- However, in Radha Devi's case the general damages were assessed at Rs. 2,000/-, and, in Mohandas's case they were assessed at Rs. 3,000/- and so far as the liability of the Insurer is concerned, in both the cases the liability was determined to the extent of Rs. 2. 000/ -. However, in view of finding on issue No. 1, the applications were dismissed. Both the claiments have come up in appeal against the order of rejection of their claim applications.
(3.) I have beard Shri N. P. Gupta, learned counsel for the applicants and Shri M. M. Singhvi, learned counsel for the respondents. The main question, which needs consideration in these appellants, is as to whether the owners of the bus can be held responsible for the accident as a result of which the claiments sustained injuries in their respective jaw. Shri Gupta, learned counsel for the appellants, urged that in these cases the facts speak for themeselves. The bus left the road, crossed the pit and thereafter a mount and then the bus stopped at a distance of about 30 paces. The pit was about 3' deep and 5' wide. If the vehicle would not have been driven with speed, it would have come to stop in the pit itself and would not have jumped the pit and crossed the mount. It was also pointed out that if brakes would. have been applied, the bus would have stopped, but it appears that the brakes were not applied, Thus, according to Shri Gupta, the claiments discharged their onus by proving the aforesaid manner in which the occurrence took place and it was for the non-applicants to rebut and prove that in fact there was some latent defect as a result of which the accident occurred. There is no evidence worth the name from the side of non-applicants, except the evidence to the effect that king pin break down, as a result of which the bus left the road and it became out of control. Shri Gupta submitted that the non-applicants have not adduced any evidence that the periodical checking was made of the vehicle and that the kingpin was in order and was properly greased and that the brakes could not work when king pin breaks. In the absence of such evidence the non-applicants cannot be absolved from the liability to pay compensation arising from the accident. Shri Gupta referred to some case law. Shri M. M. Singhvi, learned counsel for the respondents, on the other hand, urged that the Tribunal has rightly found that the bus went out of control due to some mechanical defect beyond the control of the driver. The evidence of the driver Shri Chandra Singh, the owner of the bus Shri Aalumal and the conductor Shri Premchand is sufficient to prove that the king pin was broken as a result of which the bus went out of control. There is a clear statement of the driver Chandra Singh that if the pin breaks, the vehicle goes out of control. He applied brakes, still the vehicle fell in the pit. Shri Singhvi urged that when the cause of accident is known, then in that circumstance the burden to prove rashness and negligence does not shift to the non-applicant and the principle of onus to prove res ipso loquitur cannot be pressed into service and has no application. In support of his contention, he also cited some cases. ;