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9. Gopal Giri, AW 2, the employee of K.C.T. Drinks Pvt. Ltd., who was at the time of accident sitting in the back side of the mini truck along with the consignment in his evidence stated that there was mechanical defect in the vehicle, i.e., the mini truck and in between Bhopal and the place of incident, the truck had stopped a number of times. He stated that there was some defect in the steering and bus driver was driving the bus very rashly and negligently and there was head-on collision. Due to the said accident he was also injured. The appellants in para 2 of the claim petition stated that Gopal Giri, AW 2, was sitting along with the consignment and due to breakage of bottles he received injuries.

(xii) Pankajbhai Chandulal Patel v. Bharat Transport Co. ;

(xiii) Ranju Devi v. Uttam Kumar Gadia ; and

(xiv) Sunil Dixit v. Sunita Dixit M.A. No. 449 of 1997; decided on 11.1.2005 (MP).

And submitted that the claimants are not entitled to compensation on account of negligence on the part of driver and claim petition as filed is not maintainable against respondent No. 5.

17. We have heard the learned Counsel for the parties and perused the record.

18. It is not in dispute that at the time of accident the deceased was driving the mini truck and was coming from Bhopal with the consignment of liquor of K.C.T. Drinks Pvt. Ltd. and Gopal Giri, AW 2, who was working in the said company was also sitting along with the consignment in the said truck. The appellants in para 2 of the claim petition very specifically stated that Gopal Giri was sitting along with the consignment at the back side of the mini truck and due to the accident the bottles were broken and he sustained injuries. In para 3 of the claim petition it is averred that dead body of the deceased and other two persons were stuck in the cabin and were removed after cutting the cabin of the truck. In the claim petition there is no pleading regarding the mechanical defect of the vehicle. Appellant No. 1 Narmada Prasad, AW 1, was first examined before the Tribunal on 16.3.2006 on that date he had not stated that there was mechanical defect in the vehicle. During his cross-examination learned Counsel for the appellants prayed for adjournment on the ground that he wants to file an application for amendment. Thereafter amendment application was filed and in the said amendment application, it was stated that there was mechanical defect in the mini truck. The said application was rejected on 11.3.1998 and thereafter on 13.11.1998 evidence of the appellant No. 1 Narmada Prasad, AW 1, was again recorded before the trial court and in the said evidence he developed the story of mechanical defect of the vehicle. As per para 9 of his statement at the time of accident he was not present, he came to know about the accident at 4 p.m. in the afternoon. He in para 10 of his cross-examination though stated that his son was getting salary at the rate of Rs. 2,000 per month, but neither documents to this effect were filed nor he examined the owner of vehicle to prove the salary of the deceased nor any document like salary certificate, etc. was filed. Gopal Giri, AW 2, in his statement stated that there is a mechanical defect in the steering of mini truck which was driven by Raj Narayan Vishwakarma. He also admitted the head-on collision, but in para 5 of his cross-examination he admitted that he did not know the owner of the mini truck. He admitted that the accident had occurred in the mid of the road. The Tribunal rightly disbelieved his evidence that there was mechanical defect in the steering of the vehicle because he was sitting along with the consignment at the back side of the vehicle. The impact of the accident was so high that the mini truck was badly destroyed and cabin was badly damaged and dead body of the deceased was stuck in the cabin and it was removed in pieces. All the three persons who had died in the said accident were sitting in the cabin of the mini truck and their bodies were removed after cutting the cabin of the mini truck whereas no severe injury was received by Gopal Giri, AW 2, therefore, his statement that he had seen the accident and he was sitting along with the deceased at the cabin of the mini truck is factually not correct and the same cannot be relied upon. The Tribunal rightly disbelieved the statement of Narayan Singh, AW 3, that at the time of accident he was sitting in the dhaba and he has seen the accident but he being the owner of the vehicle did not knew even the number of his own vehicle whereas he knew the number of both the offending vehicles which were involved in this accident and, therefore, his statement cannot be relied upon. Nor it can be said that accident had occurred in his presence or he has seen the accident. Thus there is no mechanical defect in the mini truck and accident had occurred on the negligence of mini truck driver as well as the negligence of bus driver and it is the case of contributory negligence and the deceased who was driving the mini truck and his contribution was to the extent of 50 per cent. The said finding of the Tribunal is just and proper and based on evidence on record.

24. In the case of Ramji Porte , from the evidence it is established that the accident occurred due to breakage of arm bolt, when the accident occurred due to a mechanical defect the owner of the vehicle has to prove that he had taken all necessary precautions and kept the motor vehicle in a roadworthy condition and that the defect had occurred in spite of reasonable care and caution taken by the owner.

25. It is well settled that if the person elects to claim compensation against a tortfeasor under Chapter XII of the Act, he takes the burden upon himself to establish the negligence of the owner of the vehicle. On establishment of negligence, the Tribunal has to determine compensation in accordance with the provisions of the Act for the death or injury caused to a workman in motor accident by the use of motor vehicle where norms of Workmen's Compensation Act in computing the compensation cannot be applied and such claimant would be entitled for 'just' compensation under common law.

35. In the case of Minu B. Mehta 1977 ACJ 118 (SC), no specific plea in the written statement was taken regarding the mechanical breakdown and no sufficient evidence on the point of mechanical breakdown. The Apex Court held that the burden of proof is on the owner of the vehicle that accident was due to mechanical defect and further held that due to mechanical defect the owner must raise a plea that the defect was latent and not discoverable by the use of reasonable care. The Supreme Court has held that if compensation is awarded without proof of negligence it would lead to strange result. Further the concept of vicarious liability without any negligence is opposed to the basic principles of law. Here in the present case also there was no pleading in an application under Section 166 of the Act that there was mechanical defect in the vehicle. The appellants during pendency of the claim petition filed an application for amendment on 19.4.1996. Application was rejected by the Tribunal vide order dated 11.3.1998. Thereafter the owner of the vehicle, i.e., mini truck, was never examined nor there is any sufficient evidence on the point of mechanical defect and, therefore, after considering evidence of Narmada Prasad, AW 1 and Gopal Giri, AW 2 and in the facts and circumstances of the case and the evidence, the claimants failed to prove that there was mechanical breakdown in the vehicle nor they examined the owner of the vehicle before the Claims Tribunal to sustain a plea that accident was due to mechanical defect. We conclude and hold that proof of negligence is necessary before the owner or the insurance company could be held liable for the payment of compensation in a motor accident claim case.