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The Claims Tribunal fixed a sum of Rs. 73,779 as the loss sustained by the doctor for a period of 4 years from the date of the accident. It also for a subsequent period of 7 years fixed the future loss at Rs. 9,000 a year and a total amount of Rs. 63,000. In addition it awarded a sum of Rs. 5,000 for discomfort and inconvenience suffered by the doctor. Thus the total compensation that was granted amount- ed to Rs. 1,43,400. As already stated the interest was awarded from the filing of the application till payment. The insurance company as well as the owners of the lorry preferred appeal against the award of the Tribunal in Appeal No. 449 of 1975 before the High Court of Bombay. Though the appeal was filed on behalf of the insurance company and the owners of the lorry, during the hearing of the appeal it was contended on .behalf of the insurance company that in any event the liability of the insurance company under the policy could not exceed Rs.20,000. The High Court on the question of whether there was negligence on the part of the driver of the lorry or not found itself in complete agreement with the Claims Tribunal and observed that it was for the lorry driver and owners to establish as to how the lorry crossed the road dividers, went on the wrong side and mounted on the Fiat Car coming 'from the opposite direction. Agreeing with the Tribunal it found that the driver was negligent. The High Court concurred with the reasons. and findings of the Tribunal. It also held in the Circumstances of the case that the principle res ipsa loquitur applied. The High Court also rejected the defence taken by the owners that the injury was due to a mechanical defect and not due to the negligence. After referring to the evidence and the reasoning of the Tribunal. on the defence set up by the owners the High Court came to the conclusion that the plea about the breaking of the tie rod was not proved satisfactorily by the owners. The High Court regarding the defence raised found itself .in complete agreement with the conclusion arrived at by the Tribunal observing that the Tribunal rightly disbelieved the defence plea and came to the conclusion after careful consideration of the evidence of the driver, Customs Officer and other evidence in the case that it was the driver who was negli- gent.

Mr. Nariman, the learned counsel appearing for the owners submitted that the High Court did not hear arguments on the question whether the accident took place due to rash and negligent driving of the lorry and therefore the ques- tion will have to be gone into by this Court or remanded for fresh disposal. We find that the High Court has given a clear finding in paragraph 30 of its judgment that the Tribunal rightly disbelieved the plea and held that it was the. driver who was negligent and that they fully concur with the reasons and findings of the learned Member of the Tribunal. In the face of the clear finding we are unable to accept the plea of the learned counsel that this question was not gone into by the High Court. We find ourselves in complete agreement with the finding of the Tribunal and the High Court that it was due to rash and negligent driving of the lorry that the car in which the applicant and Malati M. Deshmukh were travelling was hit causing injuries to both of them. We accept the testimony of the doctor and D.W. 4 Jawakar that the lorry crossed the road dividers, ran into the wrong side and hit the car which was driven by the applicant. We have no hesitation in accepting the concur- rent findings of the High Court and the Claims Tribunal that the accident was due to the rash and negligent driving of the lorry driver. We have also no hesitation in reject- ing the testimony of the defence that there was some mechan- ical defect which resulted in the tie rod end breaking. We find ourselves in agreement with the reasoning of the Claims Tribunal that the evidence on the side of the owners is contradictory and the testimony of the expert destroys the plea of any mechanical defect set up by them. In this con- nection we may also point out that in order to succeed in a 9--206SCI/77 defence that the accident was due to a mechanical defect the owners will have to prove that they had taken all necessary precautions and kept the lorry in a roadworthy condition. No such attempt was made to establish that all necessary precautions were taken-to keep the lorry in a roadworthy condition and that the defect occurred in spite of the reasonable care and caution taken by the owners. In order to sustain a plea that the accident was due to the mechanical defect the owners must raise a plea that the defect was latent and not discoverable by the use of reason- able care. The owner is not liable if the accident is due to a latent defect which is not discoverable by reasonable care. The law on this subject has been laid down in Hen- derson v. Henry E. Jenkins & Sons.(1). In that case the lorry driver applied the brakes of the lorry on a steep hill but they failed to operate. As a result the lorry struck and killed a man who was emerging from a parked vehicle. The defence was that brake failure was due to a latent defect not discoverable by reasonable care on driver's part. It was found that the lorry was five years old and had done at least 150,000 miles. The brakes were hydrauli- cally operated. It was also found after the accident that the brake failure was due to a steel pipe bursting from .7mm. to .1mm. The corrosion had occurred where it could not be seen except by removing the pipe completely from the vehicle and this had never been done. Expert evidence showed' that it was not a normal precaution to do this if, as was the case, the visible parts of the pipe were not corroded. The corrosion was unusual and unexplained. An expert witness said it must have been due to chemical action of some kind such as exposure to salt from the roads in winter or on journeys near the sea. The House of Lords held that the burden of proof which lay on the defendants to show that they had taken all reasonable care had been dis- charged. The defect remained undiscovered despite due care As the evidence had shown that something unusual had hap- pened to cause this corrosion it was necessary for the defendants to show that they neither know nor ought to have known of any unusual occurrence to cause the breakdown. (See Bingham's Motor Claims Cases Seventh Ed., p. 219). The burden of proving that the accident was due to a mechanical defect is on the owners and it is their duty to show that they had taken all reasonable care and that de- spite such care the defect remained hidden. In this case in the written statement all that is pleaded is that the axle brake ring of the lorry came out and the driver lost control of the motor lorry and that the defect can develop in a running vehicle resulting in the driver's losing control of the steering wheel. Though it was stated that all precautions were taken-to keep the lorry in a road worthy condition it was not specifically pleaded that the defect i.e. the axle brake ring coming out, is a latent pleaded and could not have been discovered by the use of reasonable care. This lack of plea is in addition to the lack of evidence and the fact that the defence set up has been rightly rejected by the Tribunal.