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Maya Devi Vs. Kartar Bus Service Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtPunjab and Haryana High Court
Decided On
Judge
Reported inI(1986)ACC374
AppellantMaya Devi
RespondentKartar Bus Service Ltd. and ors.
Cases ReferredLachhman Singh v. Gurmit Kaur
Excerpt:
.....be presumed to be in accordance with law - 6. as regards the plea of the sudden breaking of the stub axle, it is now well-settled that whenever mechanical defect is raised as a defence, it has to be established as a fact that despite reasonable care, the defect was such as could not have been detected. failure to do so cannot absolve them from blame for the resultant accident. the testimony of rw 2 sohan singh, who as has been mentioned earlier, was an employee of the respondent bus-service, makes interesting reading, in that, he deposed that the stub axle could break because of a bump or jerk and added that if the stub axle had a manufacturing defect, then it could break with even a small bump or jerk, but yet he would have the court believe that the axle could not have broken by..........hand, rests on the testimony of rw 1 nand kishore, the bus-driver who blamed the breaking of the stub axle of the bus for the accident. nand kishore deposed that while going over a slight bump on the road, the stub axle developed a crack and as a result thereof both this axle as also the tie-rod broke and the bus then went out of control and hit into a free. the speed of the bus was said to be about 60 kilometers per hour at that time. to corroborate his testimony regarding the breaking of the stub axle the respondent examined pw 2 sohan singh mechanic of the respondent bus-service who deposed that he checked the bus the day after the accident and found that the left stub axle had broken. here mr. baldev kapur counsel for the bus-owner cited mandi kulu road transport corporation v......
Judgment:

S.S. Sodhi, J.

1. On August 2, 1979 at about 2.45 p.m. the Kartar Bus Service Bus PUX-3354, while on its way from Pathankot to Jullundur, suddenly went off the road and hit into a tree. This happened near Mukerian. As a result of this accident, Kamal Kumar, one of the passengers in this bus, sustained serious injuries on account of which he later died. The Tribunal declined the claim for compensation put-forth by Maya Devi, the mother of Kamal Kumar deceased holding that the accident occurred due to a latent defect in the bus and not due to rash or negligent driving thereof. It is this finding that is now challenged in appeal.

2. According to the claimant, the accident occurred due to the rash and negligent driving of the bus-driver. The case pleaded being that the bus was being driven at a very fast speed and when it tried to give way to a bus coming from the opposite direction, the bus-driver lost control and it went and hit into a tree and it was then that serious injuries were caused to Kamal Kumar deceased to which he later succumbed. Both the bus-driver as also its owner denied that the accident had occurred on account of any rash or negligent driving of the bus. The accident was attributed to 'the sudden and abrupt crack in the machinery' which was branded as the cause of the accident. It was said that this was a latent defect which could not be anticipated and for which neither the bus-driver nor the owner could be blamed.

3. In support of their case, the claimants examined AW 5 Vinod Kumar and AW 6 Rajan Vij, who deposed that they too were travelling with the deceased in the ill-fated bus. It was their testimony that the bus was being driven at a very fast speed and in a rash and negligent manner. According to them when this bus was over-taking a truck, the driver suddenly noticed a bus coming from the opposite direction whereupon the bus-driver swerved the bus towards its left and in the process took it to the kachcha portion of the road and then tried to bring it back to the metalled part of the road, but in the process went and hit against a tree. AW 5 Vinod Kumar was the one who took the injured Kamal Kumar to the civil hospital, Mukerian.

4. The case of the respondents, on the other hand, rests on the testimony of RW 1 Nand Kishore, the bus-driver who blamed the breaking of the stub axle of the bus for the accident. Nand Kishore deposed that while going over a slight bump on the road, the stub axle developed a crack and as a result thereof both this axle as also the tie-rod broke and the bus then went out of control and hit into a free. The speed of the bus was said to be about 60 kilometers per hour at that time. To corroborate his testimony regarding the breaking of the stub axle the respondent examined PW 2 Sohan Singh mechanic of the respondent bus-service who deposed that he checked the bus the day after the accident and found that the left stub axle had broken. Here Mr. Baldev Kapur counsel for the bus-owner cited Mandi Kulu Road Transport Corporation v. Janak Raj Singh and Ors. 1968 ACJ 363 where in dealing with an accident caused by a bus a similar defence of latent defect was raised in respect of the stub axle thereof, it was observed there 'The stub axle cannot be seen and does not require any greasing or any other particular maintenance. If it develops a crack, the reason must be a defect or an imperfect workmanship on the part of the manufacturer. This defect cannot be discovered by any amount of dilligence on the part of the bus-owner, so long as the crack in the stub axle does not affect the performance and the running of the bus. This is what is called therefore a 'latent' defect, that is to say a defect which cannot be discovered by reasonable dilligence on the part of the bus-owner'.

5. As pointed out earlier, the clear and consistent testimony of AW 5 Vinod Kumar and AW 6 Rajan Vij was that the accident occurred due to the fast and rash driving of the bus. Counsel could not suggest any reason to doubt them in any manner.

6. As regards the plea of the sudden breaking of the stub axle, it is now well-settled that whenever mechanical defect is raised as a defence, it has to be established as a fact that despite reasonable care, the defect was such as could not have been detected. There is a duty imposed upon the owners of motor vehicles to take all necessary steps which a prudent owner would take to keep their vehicles in a proper state of repair. Failure to do so cannot absolve them from blame for the resultant accident. The burden of proving latent defect thus rests upon the party seeking to escape liability under cover of it.

7. While dealing with the defence of latent defect, as raised in the present case, it would be pertinent to note that the bus involved in the accident was apparently a fairly old one. RW 1 Nand Kishore in fact could not say how old the bus was Further, it was the statement of Nand Kishore that this bus had undergone an inspection at the workshop as far back as 2 1/2 months before the accident. A passenger bus which is on regular duty undoubtedly requires inspection at more frequent intervals then after 2 1/2 months or more. The testimony of RW 2 Sohan Singh, who as has been mentioned earlier, was an employee of the respondent bus-service, makes interesting reading, in that, he deposed that the stub axle could break because of a bump or jerk and added that if the stub axle had a manufacturing defect, then it could break with even a small bump or jerk, but yet he would have the Court believe that the axle could not have broken by hitting against a tree. This is indeed a statement that cannot be accepted. Incidently, the suggestion that the stub-axle had broken soon after the bus had gone over a bump or jerk, did not find mention in the written statement filed by the respondent nor indeed was the existence of any such bump suggested to AW 5 Vinod Kumar or AW 6 Rajan Viz. There is thus no warrant for assuming that the accident occurred on account of any breaking of the stub-axle, rather, it would appear that if at all the stub axle had broken, it was by the bus hitting against the tree.

8. Such being the state of evidence on record and circumstances being as discussed, there is clearly no warrant to attribute the present accident to any latent defect which could spare the bus-driver from blame for the accident. Indeed, the manner in which the accident occurred clearly attracts the maxim res ipsa loquitur. The testimony of the claimant's witnesses in fact clearly establishes that the accident here occurred entirely due to the rash and negligent driving of the bus driver. The finding on the issue of negligence, to the contrary, as recorded by the Tribunal cannot, therefore, be sustained.

9. Turning now to the quantum of the compensation payable to the claimant, the evidence on record shows that Maya Devi, the widowed mother of Kamal Kumar deceased was about 60 years of age at the time of this accident. Kamal Kumar was a lathe operator and according to the testimony of AW 1 Maya Devi as also that of AW 5 Vinod Kumar and AW 6 Rajan Vij, his emoluments, as such were to the tune of over Rs. 400/- per month. It is no doubt true that had the deceased lived, it is likely that he would have got married and also raised a family and consequently the amount that he could have spared for the maintenance of his mother, would have got considerably reduced There is also evidence to show that some amount was spent on the treatment of the deceased after this accident. Over Rs. 1,200/- were spent in the Hospital at Ludhiana. Besides this, some amount must also have been spent in taking the deceased from Mukerian to Ludhiana.

10. Taking an over-all view of the circumstances of the claimant and the deceased, in the context of the principles laid down by the Full Bench in Lachhman Singh v. Gurmit Kaur 1979 PLR 1, as also the amount spent on his treatment, the claimant, the widowed mother Maya Devi clearly deserves to be held entitled to Rs. 25,000/- as compensation.

11. Maya Devi is accordingly hereby awarded a sum of Rs. 25,000/-as compensation which she shall be entitled to along with interest at the rate of 12 per cent annum from the date of the application to the date of the payment of the amount awarded

12. The respondents shall be jointly and severally liable for the compensation awarded.

13. The liability of the respondent Insurance Company shall, however, be limited to Rs. 5,000/-.

14. This appeal is accordingly hereby accepted with costs. Counsel fee Rs. 500/-.


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