JUDGMENT
V.K. Gupta, J.
1. This appeal is directed against the judgment dated 18.11.1991 passed by the learned Presiding Officer of the Motor Accidents Claims Tribunal, Jammu, whereby he has dismissed the claim petition filed by the appellants.
2. Brief facts leading to the filing of the present appeal are that one Shiv Ram Sahani s/o Chhatia Sahani, r/o village Gateri, Post Office Mahipur Bhaia, District Puri, Orissa, aged about 21 years, while he was working as cleaner/attendant with truck No. JKQ 5306 on 10th May, 1983, died at Udhampur on Udhampur-Jammu National Highway. It was alleged that while the deceased was working as cleaner on the fateful day, i.e., 10.5.1983, his driver asked him to fetch water for the truck engine and when the deceased was in the process of getting water, he was knocked down and fatally injured by a vehicle being a Matador bearing registration No. JKQ 7068 which belongs to J&K State and was attached with the Police Training College, Udhampur.
3. It was further alleged that respondent No. 2 was the driver of the vehicle at the relevant time and because of his rash and negligent driving, the accident occurred, whereby deceased was knocked down by the vehicle and killed in the accident. The petitioners who claim to be the legal representatives of the deceased claim an amount of Rs. 7,40,000/- as compensation for the aforesaid unfortunate death of the deceased.
4. The respondents’ case before the Tribunal was that of total denial. According to the respondents, vehicle No. JKQ 7068 which respondent No. 2 was driving at the relevant time was not at all involved in the accident and was not any reason or cause for the death of the deceased. The version of the respondents before the Tribunal was that the deceased had gone to purchase a bottle of country liquor from the shop near the PHE Office at Udhampur and on his return he slipped and fell down face-wise and liquor bottle which he had tucked in the upper folds of his pyjama pierced his abdomen causing him fatal injuries.
5. On the pleadings of the parties, the following issues were framed:
(1) Whether on 10th May, 1983, the respondent No. 2 was under the employment of respondent No. 1 and while driving vehicle No. JKQ 7068 rashly and negligently near water point Udhampur run down the deceased who succumbed to the injuries in the hospital? OPP
(2) In case issue No. 1 is proved affirmatively to how much compensation are the petitioners entitled and from whom? OPP
(3) Relief.
6. The petitioners examined Rajinder Singh, Sub-Inspector, Dr. A.D, Singh Choudhary and Ishwar Sahani as their witnesses. Respondents examined Ghulam Hussain, Krishan Lal and Mohan Lal as their witnesses apart from producing respondent No. 2 in the witness-box.
7. As far as Dr. A.D. Singh Choudhary is concerned, he admittedly is not a witness to the accident because he had examined only the dead body of the deceased and conducted the post-mortem. According to his opinion, the deceased suffered from instantaneous shock resulting in his death. He found multiple perforation of abdomen leading to the intestine. The doctor has deposed that there was perforation of abdomen leading to expulsion of intestine out of the abdomen and the intestine was perforated. The doctor said that as and when the patient was brought to the hospital at Udhampur, he found glass pieces present in the surface of intestine and the glass pieces were spread in the whole of abdomen and, according to him, the perforation was caused by the glass pieces. No other injury was reported or detected.
8. Rajinder Singh, SI, was the Investigating Officer of the criminal case registered against respondent No. 2. He also is not a witness to the accident. He investigated the case and prepared the site plan and recorded the statements of the witnesses.
9. Third witness of the petitioners was Ishwar Sahani. This witness again has not seen the accident and what he deposed was based on hearsay.
10. As against the aforesaid evidence of the petitioners, respondents tendered positive evidence by producing witnesses who deposed about the total non-involvement of the vehicle of respondents.
11. This is a case where the petitioners, on whom burden of proving the rashness and negligence lay, totally failed to produce any evidence whatsoever linking the driver of the offending vehicle in the matter of causing the death. It was the duty of the petitioners to have produced enough evidence to prove by preponderance of probabilities that the respondent No. 2 was negligent and rash in causing the accident. Not a single witness has been produced by the appellants who could state any fact regarding the causing of the accident, because admittedly none of the witnesses produced by the petitioners were at all privy to the accident or had any occasion to see the accident happening.
12. ‘Burden of proof and ‘onus of proof are such expressions which are totally distinct from each other. Burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof does shift. Such a shifting of onus is a continuous process in the evaluation of evidence. ‘Burden of proof has two distinct meanings, namely, (i) the ‘burden of proof as a matter of law and pleadings and (ii) the ‘burden of proof as a matter of adducing evidence. The first remains constant, but the second shifts. In a claim application, therefore, the burden of proof, in the first instance, certainly lies on the claimant. If he examines himself and his witness, if any and if the evidence so adduced by the claimant tested in the light of principles governing the burden of proof is found to be acceptable the onus of proof shifts on the other to prove those circumstances, if any, which dislodge the assertions of the claimants. If the opposite party fails to prove before the court any fact or circumstances which tend to affect the evidence led by the claimant, the claimant would be entitled to ask the court to hold that he has established the onus and on that basis, to pass a just award. It would thus appear that though the legal burden, i.e., the burden as a matter of law and pleadings, remains constant on the claimant, the burden as a matter of adducing the evidence changes often times as the trial of the claim petition progresses. In the present case, I have very minutely examined the entire evidence and found that the claimants-appellants totally failed to discharge the burden of proof which lay on them, and therefore, there was no question of shifting of the onus of proof upon the respondents.
13. When faced with this piquant situation about the total lack of evidence of the claimants to prove the rashness or negligence of the respondent driver, Mr. B.B. Kotwal, learned counsel appearing for the appellants-claimants, submitted that I should invoke the principle of res ipsa loquitur. According to him, all that the appellants were required to establish was that an accident had occurred in which the deceased had died and once that was done, the onus shifted upon the respondents to prove that the accident was not caused because of any rashness or negligence on their part. In support of his contention, Mr. Kotwal relied upon a judgment of the Supreme Court in the case of Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343 (SC).
14. The normal rule is that it is for the claimants to prove the negligence, but as in some cases considerable hardship is caused to the claimants, because true cause of the accident is not known to them, but is solely within the knowledge of the respondent driver who was driving the vehicle at the relevant time, the claimants can prove the accident, but cannot prove how it happened to establish the negligence on the part of the respondent driver. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident ‘speaks for itself or ‘tells its own story’. There are cases in which accident speaks for itself so that it is sufficient for the claimant to prove the accident and nothing more. It will then be for the respondents to establish that the accident happened due to some other cause than their own negligence. The maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the respondent driver that a reasonable person could find without further evidence then it was so caused. In the aforesaid judgment in Pushpabai’s case, 1977 ACJ 343 (SC), their Lordships of the Supreme Court while relying upon the principle referred in the Halsbury’s Laws of England held as under:
An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendant’s negligence, or where the event charged as negligence ‘tells its own story’ of negligence on the part of the defendant, the story so told being clear and unambiguous.
15. Where the maxim is applied, the burden is on the respondent driver to show that either in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part. For the application of the principle res ipsa loquitur, it must be shown that the vehicle was under the management of the defendant and that the accident was such as in the ordinary course of things does not happen if those who have the management used proper care.
16. In the case before us in the present appeal, the very factum of the accident has been denied. It has totally and absolutely been denied by the respondents that the vehicle was in any manner involved in the accident or that they were in any manner responsible in causing the death of deceased Shiv Ram. Had the respondents admitted in the Claims Tribunal that the accident had in fact happened, the principle of res ipsa loquitur would have been invoked. Had it been proved beyond any doubt that the death of the deceased Shiv Ram was caused as a result of the accident, even if there was absence of any proof of rashness or negligence, even then the principle of res ipsa loquitur could have been pressed into service. In any of the aforesaid two eventualities, respondents should have been called upon to disprove the allegations of the claimants and to establish that, even though the accident had happened, yet it was not because of any rashness or negligence on their part, but it had been caused because of some other factors for which they could not be deemed to be responsible. Then, of course, the court should have examined the relative merits of the evidence and returned the finding. Unfortunately, however, in the present case before us, there is no such evidence and, therefore, I find that the claimants had failed to establish that the respondent driver was in any manner responsible for causing the accident.
17. For the foregoing reasons, therefore, I find no reason to interfere in the judgment under appeal and accordingly, while dismissing the appeal, confirm and uphold the judgment impugned herein.
18. During the proceedings pending before the Claims Tribunal an interim award was passed on March 18, 1986, by the Tribunal whereby interim relief in the sum of Rs. 15,000/- was granted in favour of the claimants. Undoubtedly, and admittedly, this amount of interim relief has not so far been paid to the claimants-appellants. Irrespective of the nature of the accident the interim award was passed on the basis of no fault liability and once the interim relief was granted, unless it was set aside by a superior court in the appeal, respondents were bound to pay this amount to the appellants as per directions of the Tribunal. Because the respondents did not pay the amount to the appellants so far, I hold that they become liable to pay this amount with interest at the rate of 12 per cent per annum with effect from the date of the passing of the interim award, i.e., 18.3.1986. Undoubtedly, liability to pay this amount rests upon respondent No. 1, i.e., State of Jammu and Kashmir and I hold that respondent No. 2 shall not be liable to pay the amount in question because he being the employee of respondent No. 1 was acting as an agent of his principal and the principal is liable to compensate for the wrongs of his employees.
19. I accordingly direct that respondent No. 1 shall be liable to pay the amount of Rs. 15,000/- of interim award with interest at the rate of 12 per cent per annum from 18.3.1986 uptil the date the amount is actually realised by the appellants. The appellants shall accordingly be at liberty to recover the aforesaid amount from the respondent No. 1 by taking out appropriate execution proceedings.
20. With the aforesaid directions, this appeal is accordingly disposed of.