HIRJI VIRJI TRANSPORT Vs. BASIRANBIBI WD O MOHAMEDMIYA MOHAMEDHUSSEIN MUNSHI

JUDGEMENT

(1.) The owner of the truck the driver and the concerned insurance company have filed this appeal against the award of the learned Claims Tribunal awarding an amount of Rs. 45975/by way of damages to the widow respondent No. 1 and the three minor sons-respondents 5 to 7. Respondents 2 and 3 were the major sons and respondent No. 4 was the married daughter who were not dependents and who have not raised any dispute for inter-se apportionment of the compensation amount. Even before us respondents 2 to 4 have not made any grievance and therefore the case has entirely proceeded on the footing that the amount is to be awarded under both the relevant secs. 1A and 2 as regards the loss of dependency benefit and the loss to the estate only to those four respondents the widow and the three minor sons. The truck of the appellants 1 and 2 MRT 4756 had dashed against the scooter driven by the deceased Mahmadmiya Mohamed Hussein on the outskirts of the Fatehpur village on August 7 1966 The concerned truck was coming from Ahmedabad side and was going to Bavla on the Ahmedabad-Bavla Road from east to west; while the deceased's scooter with witness Jambu Nazir ex. 99 on the pillion was at that time going from Dholka to Ahmedabad. It is an admitted fact even by the driver of the truck Tukaram Ramji Ex. 106 that it was a rainy day and even at the time of the incident at about 10.0 P.M. it was actually drizzling. It was a dark night. Admittedly the truck had no wipers as admitted even by the driver. There is hardly any substance in his plea that the wind-screen glass which was in two parts had been separated so that he could peep through. The Panchnama Ex. 63 discloses that even though the wind-screen consisted of two separate glasses they were closed. Besides in that case the visibility would be all the more obstructed. Even the statutory requirement of 1969 rules under rule 147 provides for the wipers. The panchnama Ex. 63 which has been properly proved disclosed marks of collision. Below the right head light of the truck there was a scratch and black rubber was brushed. There was a scratch also on the right mudguard. The right handle of the scooter was damaged to the extent of Rs. 200.00. This gives a complete answer to the plea of the driver that the scooter had slipped into the wheel of the truck. In view of the impact of collision as evidenced by the panchnama Ex. 63 the learned Claims Tribunal rightly disbelieved this theory. The Panchnama Ex. 63 discloses that it was 12 ft wide asphalt road with 8 ft. metal road on two sides. The tyre marks revealed that the driver must have applied the brake at a distance of about 30 ft. and the truck had gone about 55 ft. The scooter was only 3 1/2 ft. from the road on its correct side. It was therefore apparent from the Panchnama Ex. 63 that the driver was on the extreme wrong side. As he had no wiper and he was taking the truck while it was actually drizzling on the dark night he must have occupied large pace on the road by going on the wrong side. As soon as he saw the scooter he had swerved the vehicle and that is why he came right across the road on the other-side. Mr. Vakil had vehemently argued that-.there was some evidence to show that the scooter must have slipped in and he tried to rely on the first police statement of Jambu Nazir who was on the pillion. The learned Claims Tribunal had ignored the main fact that this police statement could go in evidence only as a statement recorded by the P.S.I. and when the P.S.I. Ladhubha Ex. 66 was not asked a single question in this connection. The police statement was however obviously wrongly exhibited. The learned Claims Tribunal was right in observing that Jambus statement might not have been correctly recorded because Jambu was not speaking Gujarati language and therefore the correct version was in the second statement. In any event in view of the marks of collision this slipping theory can hardly be accepted. Therefore these primary facts that the truck in question was on its wrong side and going without wipers on the rainy night could not only lead to presumption of negligence but conclusively establish negligence of this truck driver which resulted in this accident.

(2.) The legal position in this connection is now well-settled after the decision of the Supreme Court in Gobald Motor Service Ltd. v. R. M. K. Veluswami A.I.R. 1962 S.C. 1 at page 4 and in Municipal Corporation of Delhi v. Subhagwanti A.I.R. 1966 S.C. 1750 at page 1752. Their Lordships in terms held that where such an inanimate injurious agency and the surrounding circumstances are all entirely within the defendants control and the accident takes place which ordinarily could not happen if the defendant had taken proper care or had not remained negligent the doctrine of res ipsa locuitur applies where the event charged as negligence tells its own story of negligence on the part of the defendant In these cases the inference is that the defendant is liable unless he in the first instance discharges the burden to disprove his liability by showing that the accident could reasonably happen without negligence on his part. In Henderson v. Henry E. Jenkins & Sons 1969 (3) A.E.R. 756 at page 766 Lord Person made this classic distinction between the evidential burden of proof and formal (or legal or technical) burden of proof in such negligence cases. The learned Judge observed that in any action for negligence the plaintiff must allege and has the burden of proving that the accident was caused by negligence on the part of the defendant. That is the issue throughout the trial and the formal burden of proof does not skift. But if in the course of the trial there is proved a set of facts which raise a prima facie inference that the accident was caused by negligence an the part of the defendants the issue will be decided in the plaintiffs favour unless the defendants by their evidence provide some answer which is adequate to displace the prima facie evidence. It is in this situation that it is said that the evidential burden of proof rests an the defendants in such cases. It should be noted that the case before the House of Lords was of an accident arising from the latent defect resulting in brake failure and their Lordships held that the defendants who were in control of this injurious agency and the surrounding circumstances had on the establishment of these primary facts to prove that in all the circumstances which they knew or ought to have known they took all proper steps to avoid the danger and as they had failed to prove that they were held liable to pay damages to the plaintiff.

(3.) Therefore applying these principles the primary facts could only tell their own story in the present case so as to conclusively prove negligence on the part of the defendants. Therefore that part of the finding of the learned Claims Tribunal must be maintained.