Jharkhand High Court
New India Assurance Company Ltd. vs Smt. Rekha Devi And Ors. on 28 March, 2003
Equivalent citations: [2003(3)JCR681(JHR)]
Author: Hari Shankar Prasad
Bench: Hari Shankar Prasad
ORDER
1. Heard. Insurance Company has filed the present appeal under Section 173 of the Motor Vehicles Act, 1988, challenging the impugned judgment and award dated 19.6.2002, passed by Motor Vehicles Claim Tribunal, Bokaro, in Title M.V. Case No. 51 of 1998, whereby insurer was directed to indemnify owner's liability to pay compensation of Rs. 2,74,000/-. On 28.9.1998 the truck (BR-17-0431) loaded with coils developed a snag on the way. The owner of the truck asked the driver to change its wheel with the help of jack. The jack was not working properly. In the meantime, another truck (BEV-8058) came there and on request its driver, Ashok Kumar Sah came down to assist in changing the defective wheel. While doing so unfortunately the said truck turned turtle and fell down crushing the leg and waist of Ashok Kumar Sah. He was taken to hospital, where he was declared dead.
2. Learned counsel for the appellant submitted that since accident did not take place due to rash and negligent driving of the vehicle, the Insurance Company cannot be held liable to pay any amount of compensation. Owner of the truck knowing fully well that jack was defective and faulty insisted the driver to use the same to change the rear wheel and consequent thereto the truck turned turtle and, therefore, the owner himself was liable to pay compensation.
3. There are certain happenings which do not occur normally, unless there is negligence. Normally it is for the claimants to prove the negligence, but in some cases they cannot prove it as they may not have witnessed the accident or they have no knowledge as to how it happened. Driver has to show in specific cause not connecting negligence on his part, or that he used all reasonable care expected of him.
4. Negligence is nothing but a breach of duty to take care. It is not an absolute term and depends upon the facts and circumstances of each case. Determination of negligence depends upon consideration of all the surrounding facts and circumstances. A broad view on the basis of probabilities is required to be taken in establishing negligence. Where a heavy vehicle, like the truck, had turned turtle, the doctrine of resipsa-loquitur was applicable. In the present case, the claimants have proved the accident, but they were not in a position to prove how it happened. Mere proof of accident raises the presumption of negligence, unless rebutted by the wrong doer. The claimants cannot say what precisely led to the accident. It may peculiarly be within the means of knowledge of the owner or the driver, who were present at the time of accident. They cannot escape liability merely by preferring hypothetical explanation, however plausible, of the accident.
5. In out opinion, the principle of res-ipsa loquitur is attracted in the present case and the burden shifted on the other side to prove that the owner/driver was not negligent. Hence, the negligence of owner/ driver was prima facie established under the doctrine of res-ipsa-loquitur and as such it was incumbent on the part of owner/ driver of the truck (BR-17-0431) not merely to say that they had acted carefully, but to rebut that presumption by proving that there was no negligence on their part, even though they could not prove how the accident happened. It was for them to show either that in fact they were not negligent or that the accident might (sic) probably have happened in a manner which did not connote negligence on their part. From the description of the accident given by claimants, which stood unchallenged, the owner/driver miserably failed to prove that the incident did not take place due to their negligence. It was, therefore, established in the present case that accident occurred due to actionable negligence of the owner or the driver of the truck in question. Thus there is no force in the submissions of the appellant's counsel. In the result, the appeal is dismissed.