JUDGMENT
S.R. Singh, J.
1. This appeal under Section 110-D of the Motor Vehicles Act (in short ‘the Act’) is directed against the judgment and order dated 14.5.1980, rendered by 4th Additional District and Sessions Judge (Motor Accidents Claims Tribunal), Saharanpur, thereby rejecting the claim petition No. 1 of 1979 preferred by the appellant in respect of accident which occurred on 25.7.1978 involving bus No. HYB 664 of Haryana Roadways. The claimant-appellant was employed as an Inspector in the E.S.I. Corporation, Saharanpur, at the time of the accident. The bus was being driven by driver Permanand.
2. It would appear from a perusal of the record that at the time of accident, the front right tyre of the bus suddenly deflated resulting in the ill-fated bus deflecting and dashing against the tree on the roadside. The claimant, besides driver of the bus and the other co-passengers, sustained injuries in the accident which occurred due to the vehicle dashing against the tree. The appellant has staked claim to Rs. 60,000/- as compensation. The claim was contested by the General Manager, Haryana Roadways, Bhiwani, who filed a written statement refuting the allegations that the accident came about due to rash and negligent driving of the bus. According to him, the vehicle was proceeding at a normal speed when suddenly the front right tyre of the bus got burst and the driver, in spite of best possible efforts, could not retain control over the vehicle and it came to a halt only after hitting a roadside tree. The accident, according to the respondent, was one beyond the control of the driver. In support of his case, the claimant-appellant examined himself as PW 1 and one Harpal Singh, as PW 2. Harpal Singh was not one of the passengers travelling in the bus but is said to be present at the scene of occurrence and to have witnessed the same.
3. The Tribunal found it established that the claimant suffered multiple injuries in the accident in question besides a portion of his right foot below the toe being sliced off and that he has ever since been making use of the said foot with the aid of an artificial limb. On the question of expenditure incurred by the appellant on his treatment, the Tribunal found that the plaintiff incurred an expenditure to the tune of Rs. 6,000/- in connection with the treatment of his injuries. This finding is based on the statement of the appellant himself. Tribunal further found the appellant entitled to an amount of Rs. 2,000/- in expiation of the lost part of his foot, now in use with artificial limb. The Tribunal further recorded a finding that the appellant suffered no loss of income due to injuries sustained by him inasmuch as he continued to be in the same grade with the same emoluments, etc., without any likely loss of promotion in future. According to the Tribunal, the appellant was at best entitled to a compensation of Rs. 8,000/-but refrained from awarding the compensation on the finding that the accident was not as a sequel to rash and negligent driving of the vehicle by its driver. It was on the finding that the vehicle was not being driven rashly and that the driver averted a major accident due to his effective control of the vehicle and his retaining proper presence of mind in the moment of crisis that the Tribunal dismissed the claim petition. Aggrieved, the appellant has filed the instant appeal.
4. The learned Counsel for the appellant urged that the finding that the vehicle was not being driven rashly or negligently, is barred by error of law inasmuch as the Tribunal has erroneously placed the burden and onus upon the shoulders of the appellant. The submission made by the learned Counsel appearing for the appellant is placed with some substance. The principle applicable to onus of proof in motor accident cases has been succinctly expounded by Asquith, LJ. in Barkway v. South Wales Transport (1948) 2 All ER 460, as under:
(i) If the defendants’ omnibus leaves the road and falls down an embankment, and this without more is proved, then res ipsa loquitur, there is a presumption that the event is caused by negligence on the part of the defendants and the plaintiff succeeds unless the defendants can rebut this presumption; (ii) it is no rebuttal for the defendants to show, again without more, that the immediate cause of the omnibus leaving the road is tyre burst, since a tyre burst per se is a neutral event consistent, and equally consistent, with negligence or due diligence on the part of the defendants. When a balance has been tied one way, you cannot redress it by adding an equal weight to each scale. The depressed scale will remain down. This is the effect of the decision in Laurie v. Raglan Building Co. (1942) 1 KB 152, where not a tyre-burst but a skid was involved; (iii) to displace the presumption, the defendants must go further and prove (or it must emerge from the evidence as a whole) either (a) that the burst itself was due to a specific cause which does not connote negligence on their part but points to its absence as more probable; or (b) if they can point to no such specific cause, that they used all reasonable care in and about the management of their tyres.
The same principles have been restated in Halsbury’s Laws of England, Vol. 23 at p. 671, para 956, thus:
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 immediately 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 defendants, the story so told being clear and unambiguous. To these cases, the maxim res ipsa loquitur applies. Where the doctrine applies, a presumption of fault is raised against the defendant, which, if he is to succeed in his defence, must be overcome by contrary evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on his part. Where, therefore, there is a duty on the defendant to exercise care and the circumstances in which the injury complained of happened are such that with the exercise of the requisite care no risk would in the ordinary course of events ensue the burden is in the first instance on the defendant to disprove his liability. In such a case, if the injurious agency itself and the surrounding circumstances are all entirely within the defendant’s control, the inference is that the defendant is liable and this inference is strengthened if the injurious agency is inanimate.
5. The aforesaid principles have been quoted with approval by the Supreme Court in Gobald Motor Service Ltd. v. R.M.K. Veluswami 1958-65 ACJ 179 (SC). In Calcutta State Tram. Corporation v. Kamal Prakash De, 1976 ACJ 58 (Calcutta), a Division Bench of the Calcutta High Court has held as under:
(13) The maxim res ipsa loquitur means that the accident talks or the things speak for themselves. There may be certain accidents which are patent and self-speaking that they will shift the burden of proof on the defendant. It is, no doubt, a rebuttable presumption. Before a Tribunal to succeed in an action against the owner or driver of the vehicle, the claimant has to establish some negligence or a breach of duty by the defendant towards him and its causal connection with the injuries sustained by the claimant.
It was further held:
(14) Where the accident occurs due to bursting of tyre, as in the instant case, the duty of the injured or the heirs of the deceased is initially to allege and prove facts leading to negligence of the owner or driver of the vehicle. Then the duty of the driver and the owner arises to show whether there was absence of negligence and all possible care and precaution was taken to avert the accident. The plea of inevitable accident can certainly be raised. Bursting of tyres generally does not take place in new tyres. Old tyres beyond a maximum capacity should not be used and a driver should be vigilant when he runs the vehicle and see if any impediment is on the way. Every case requires the care of a prudent and reasonable man. Before starting, machinery has to be tested. An owner guarantees the soundness of the vehicle to his passengers as in the case of trains. Thus in all cases of enquiry before the Tribunal or the court, as the case may be, in investigating the matter of negligence, the elements and principles of tort have to be invoked and the defence open in the cases of tort is open in the case of negligence. What is negligence depends upon determination of various factors. There are three basic elements of tort:
(1) an act of omission on the part of the defendant;
(2) intention or negligence or the breach of a strict duty on the part of the defendant; and
(3) damages resulting to plaintiff from the wrongful act of the defendant which is not too remote.
An act would mean doing of a positive act and omission means breach of duty. In each case it will be duty of the plaintiff to connect the wrongful act with the damages accruing and to show that the defendant was negligent. Inevitable accident is an accident such as that the defendant could not have avoided by the use of the kind and degree of care necessary to the exigency and in the circumstances he was placed.
6. In the instant case, the Tribunal has recorded a finding that ‘the vehicle was fitted with used tyres’ and that being the position the burden was upon the owner of the vehicle to prove that the tyre was not old enough and shredded as to require its replacement in exercise of due diligence expected of it. No evidence was adduced by the owner who alone could have produced it, to discharge the said burden cast upon it under the law of Torts. Nor was any evidence led to show that due care and precaution had preceded before the bus was certified to be taken to road, as to ascertain whether the tyres which have been found to be used ones were at all roadworthy and reasonably usable. How old was the tyre which had burst, has not come in evidence. On the above finding of the Tribunal, a proper and natural inference that immediately and reasonably follows is that the injury complained of was a sequel to defendant’s negligence. The tenor of the judgment rendered by the Tribunal, however, testifies to the fact that it has not adverted itself to the aforesaid principle non-consideration of which vitiated the judgment in part. In any view the findings recorded by the Tribunal on issue No. 1 that the accident was not ascribable to rash and negligent driving of the vehicle is barred by error of law and cannot be countenanced.
7. The Tribunal has recorded a finding that appellant was entitled to Rs. 8,000/-as compensation. The finding on the question of expenses incurred by the petitioner on his treatment is, of course, rooted in the statement of the appellant but the Tribunal has not reckoned with the expenditure borne by the petitioner subsequently on his visits to Pune and other places as a follow-up treatment. The award of Rs. 2,0007- which, according to the Tribunal, the appellant was entitled in expiation of permanent loss of a part of his foot, now being made use of with the aid of artificial limb, is an exiguous amount to recompense the loss as compared to a disability indwelling the victim as a permanent feature. As found by the Tribunal, the appellant has become bereft of his right foot below the toe, which is being made use of by artificial limb. Under the facts and circumstances of the case and having regard to the decisions in Oriental Insurance Co. Ltd. v. Sakti Kumar Mohanty 1994 ACJ 198 (Orissa), and Ambika Srivastava v. Madhya Pradesh State 1994 ACJ 219 (MP) and Chainsingh v. Gendalal 1994 ACJ 779 (MP), as well as the object of Section 92-A which was inserted by amending Act 47 of 1982 w.e.f. 1.10.1982 during the pendency of this appeal, the appellant is held entitled to an enhanced amount of compensation, which is quantified at Rs. 25,000/- with interest at the rate of 12 per cent from the date of application.
8. In the result, the appeal succeeds and is allowed in part. The appellant is entitled to a compensation of Rs. 25,000/- with interest at the rate of 12 per cent per annum from the date of application. In the circumstances of the case the parties are directed to bear their respective costs.