PANWAR, J. - (1.) THIS appeal is directed against the judgment and award dated 27. 8. 97 passed by Motor Accident Claims Tribunal, Ratangarh whereby the Tribunal awarded compensation of Rs. 6,08,000/- in favour of respondent claimants No. 1 to 4 (for short `the claimants' hereinafter) and against the appellant. Respondent No. 5 National Insurance Company Ltd. , insurer of the vehicle involved in the accident was exonerated from the liability and the claim filed against the Insurance Company was dismissed. Aggrieved by the judgment and award impugned, the appellant owner of jeep No. RJ 23/g 0312 filed this appeal.
(2.) BRIEFLY stated facts to the extent they are relevant and necessary for decision of this appeal are that on 10. 10. 93 at about 2. 00 PM Prathvi Ram was travelling in a Jeep bearing number RJ 23/g 0312 from Sikar to Ratangarh on National Highway No. 11. The said jeep was owned and driven by the appellant Mahaveer Prasad at a great speed, rashly and negligently. Due to rash and negligent driving of the jeep, the said jeep went off the road and dashed against the mile stone on the road side and turned turtle. The occupants of the jeep including Prathvi Ram sustained severe injuries and Prathvi Ram succumbed to the injuries instantaneously. Legal representatives of the deceased Prathvi Ram filed a claim petition before the Tribunal claiming compensation for a sum of Rs. 12,98,416/ -. The appellant and the Insurance Company filed their respective written statements. In para 11 of the written statement, the appellant has admitted the fact of accident, death of the deceased Prathvi Ram and the jeep being driven by him at the relevant time. In the reply filed by the Insurance Company, it was admitted that the said jeep was insured with the respondent Insurance Company. However, the Insurance Company claimed exoneration from the liability on the ground that the insured has not informed the Insurance Company regarding the said accident and as such, violated the terms and conditions of policy. The Insurance Company restricted its defence as provided in sections 147 and 149 of the Motor Vehicles Act, 1988 (for short `the Act' hereinafter ). Certain other pleas regarding permit fitness and the driver of the vehicle not having a valid driving licence were also taken. Before the Tribunal, the claimants produced A. W. 1 Roshni wife of the deceased, A. W. 2 Kundan Lal & A. W. 3 Sahab Ram. The respondent Insurance Company produced N. A. W. 1 B. L. Banshiwal and produced the policy of insurance Ex. NAIA. While deciding the issue regarding rash and negligency, the Tribunal held that the said accident was outcome of rash and negligent driving of the jeep by the appellant and accordingly, issue No. 1 was decided in favour of the claimants. Issues No. 2 and 3 were also decided in favour of the claimants. While deciding issue No. 3, the Tribunal computed compensation in all for a sum of Rs. 6,08,000/- and accordingly, passed the award. While deciding issue No. 4, the Tribunal held that the appellant is liable for the compensation and the Insurance Company was exonerated from the liability.
(3.) I have heard learned counsel for the parties. Perused the judgment and award impugned and have carefully gone through the record of the Tribunal. It is contended by the learned counsel for the appellant that the Tribunal fell in error in holding the appellant negligent for the said accident. I have carefully gone through the various statements of the witnesses produced by the claimants. None of the witnesses produced by the claimants is an eye witness of the occurrence. However, the fact of the accident and death of the Prathvi Ram was admitted by the appellant in para 11 of the written statement. The claimants have not produced any eye-witness. The best person, to know about the occurrence as to how and in what manner the accident occurred, is the driver of the vehicle. The appellant himself had not appeared as a witness before the Tribunal. In the facts and circumstances of the present case, the maxim `res ipsa loquitur' is fully attracted. An adverse inference is to be drawn for non-production of driver of the vehicle in the witness box and once the claimants established the fact that the accident was caused by the Jeep in question thereafter it was for the non-applicant to show that the non-applicant was not negligent for the said accident. In Shyam Sunder & Others vs. The State of Rajasthan (1), the Hon'ble Supreme Court held as under: " The principal function of the maxim is to prevent injustice which would result if a plaintiff were invariable compelled to prove the precise cause of the accident and defendants responsible for it, even when the facts bearing on the matter are at the outset unknown to him and often within the knowledge of the defendant the maxim is based on common sense and its purpose is to do justice when the facts bearing on causation and on the care exercised by defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant. " In the instant case, the appellant, no doubt, denied his negligency in driving the jeep. This fact can best be explained by the appellant, who is also owner and driver of the jeep and if he chose to keep away himself from the witness box or the insurer of the jeep failed to produce him as a witness in the witness box that too without any sound reason, then it must indeed be construed as a telling circumstance against the driver, owner and the insurer. it is clearly the duty of the driver, owner or insurer of the offending jeep to place before the Tribunal the best evidence available and the driver of the offending jeep is the best evidence to narrate the manner in which the accident took place and if he refrains from doing so, but only on peril of an adverse inference being drawn against him. ;