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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
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J U D G M E N T
CIVIL MISC. APPEAL No. 745 of 1997
R S R T C & ANR
V/S
PRAVIN KUMAR
Date of Judgment : 16.3.2009
HON'BLE SHRI N P GUPTA,J.
Mr. ANIL BACHAWAT, for the appellant / petitioner
Nobody appears for the Respondent/s.
BY THE COURT :
This appeal has been filed by the appellant, who
is the owner of the vehicle, against the award of the Motor
Accident Claims Tribunal, Rajsamand dated 19.3.1997,
passing an award in the sum of Rs.75,000/- on account of
personal injury sustained by the claimant.
The brief facts of the case are, that on 3.7.1991
the claimant respondent was travelling in the bus of the
appellant as a passenger. In the Desuri Ki Naal on account
of negligent driving of the bus, it hit against the
hillock, as a result of which, the claimant was thrown out,
and sustained injury. He has claimed that he was student of
9th standard.
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The appellant contested the claim by filing the
written-statement, and only adopted a stand of denial for
want of knowledge and proof. It was also pleaded that the
appellant operates vehicles in public interest, from whom
no compensation, or interest can be awarded. In other
words, it can very safely been inferred, that the factual
averments, about the happening of the accident, negligent
driving of the bus, the claimant’s sustaining personal
injuries etc. were not at all denied, and are required to
be taken to be admitted, on the principle of non-traverse.
However, the learned Tribunal framed 4 issues.
Issue No.1 related to negligence. Issue No.2 related to
quantum of compensation, and issue No.3 related to non-
liability of the insurer, on the basis of the pleadings
taken in the written-statement.
I am constrained to observe, that the learned
Tribunal has proceeded with a case in a wholly casual
manner, inasmuch as, neither the bus is alleged to be
insured, nor insurer was at all a party, nor any reply was
filed by the insurer, nor any decree was claimed against
the insurer, still issue no. 3 has been framed. It appears
that the Tribunal had prepared a standard proforma of
issues, and by filling in the blanks, it was signed in the
present case. This practice is required to be stopped
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forthwith by all the Tribunals, and is seriously
deprecated. Copy of this order be circulated to all the
Motor Accident Claims Tribunals, with a direction to stop
this practice if they are also following it.
During trial claimant examined himself, and
deposed the facts alleged in the claim petition, and also
deposed about the treatment administered on him. In cross-
examination, he was suggested, that the bus was negotiating
a down gradient, and he does not know that the brakes of
the bus suddenly failed, and at that place, on one side was
hillock, while on the other side, was a deep pit. Thus, it
appears, that during trial, a defence was sought to be
developed about sudden brake failure of the bus.
The learned Tribunal decided issue No.1 in favour
of the claimant, by observing, that firstly no evidence has
been led in this regard by the defense, the burden of proof
of sudden failure of brakes was on the defendants, even the
mechanical examination report of the vehicle has also not
been produced; Even driver of the bus has not been examined
by the defendant. Thus, there is no material whatever on
record, on the basis of which it can be concluded, that the
accident occurred on account of sudden brake failure. Thus,
the issue was decided against the appellant, and in favour
of the claimant.
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Arguing the appeal it was contended, that the
accident was unavoidable, for the simple reason, that the
bus was negotiating a steep down gradient, and at that
time, suddenly the brakes failed, and it was an act of
carefulness on the part of the driver, that instead of
allowing the bus to fall in the pit, he chose a lesser evil
of allowing the bus to dash against the hillock, otherwise
far more drastic consequence would have flown, and the
learned Tribunal was in error in not appreciating this
aspect of the things, and the overall situation.
I have heard learned counsel for the appellant,
and have gone through the material on record, as nobody
appeared on behalf of the respondent.
In my view, may be that the accident may have
occurred on account of failure of brakes. Obviously if the
brakes were functioning perhaps the vehicle would have been
controlled, but then, in the legal parlance, projecting
this defence, tantamounts to taking a defense of mechanical
failure, or mechanical brake down. Obviously this is a plea
of fact, which requires a bundle of facts to be pleaded,
and proved, including, that it was the latent defect, which
could not be noticed by the owner and/or driver, and that
the vehicle was being properly maintained from time to
time, to be in a roadworthy condition, and despite taking
all care, and precaution, and undertaking all requisite
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maintenance, the brakes had failed. In the present case,
significantly, as noticed above, there is no pleading
whatever, even about the brakes having failed, much less
the plea of mechanical failure, or mechanical brake down,
had been taken in the manner as required by law. I may
refer to celebrated judgment of this Court in Radha Devi &
Anr. Vs. M/s. Aaluman Gyanchand & Ors., reported in 1982
ACJ 69, wherein the law in regard to the requirement of
pleading, in cases of mechanical failure or mechanical
brake down, the facts required to be pleaded and to be
proved, has been dealt with threadbare, even by considering
various judgments of Hon’ble the Supreme Court, judgments
of Privy Council, and the judgments of House of Lords, so
also that of Kings Bench. To be precise, judgment in Radha
Devi’s case fully covers the present case against the
appellant.
In the result, following the judgment in Radha
Devi’s case, I do not find any force in the appeal. The
same is, therefore, dismissed. The parties shall bear their
own costs.
( N P GUPTA ),J.
/tarun/