Kochu Thommen, J.
1. The 1st respondent in these appeals were some of the passengers who travelled by the 1st appellant's bus K. L.D. 8083 which operated between Nilambur and Kozhi-kode via. Manjari. The 2nd appellant who is an employee of the 1st appellant was the driver of the bus. The 1st respondents boarded the bus at Manjari at 1981 about 5.30 p. m. on 15-1-1977. When the bus reached Vemboor it suddenly swerved out of the road and dashed against a mango tree which stood on the left hand side of the road at a distance about 8 yards. The bus was extensively damaged and a number of passengers including the 1st respondents (the 'claimants') sustained injuries. They lodged their claims with the Tribunal constituted under Section 110 of the Motor Vehicles Act, 1939, for compensation in re-pect of the injuries suffered by them as a result of the accident. The Tribunal by separate orders held that the claimants were entitled to be compensated for the injuries suffered by them and that the 1st appellant (the 'owner'), the 2nd appellant (the 'driver') and the 2nd respondent (the 'insurer') were liable to pay the same to the claimants. Compensation was awarded in the sums of Rs. 3057/-, Rs. 2435/-, Rs. 2276.05, Rupees 2935/- and Rs. 4400/- respectively in favour of the 1st respondents in M. F. A. Nos. 17/79, 18/79. 19/79. 20/7g and 32/79.
2. These appeals are instituted by the owner and the driver against the orders of the Tribunal awarding compensation as aforesaid.
3. The original claim petitions contained no statement that the accident was caused on account of the negligence of the owner or the driver. But the petitions were allowed to be amended by specific orders of the Tribunal to insert such statements. Accordingly the petitions were amended to insert the following particulars:
The accident occurred due to the rash and negligent driving of the driver of the bus. He was driving the vehicle at a very high speed and was not in a position to control the same. If he was vigilant enough the accident could have been avoided.
In reply to the claims the owner and the driver filed their counter-statements on 26-9-1977 stating that the accident was not caused by rash and negligent driving and that they were not liable to pay compensation. The insurer filed their statement on 23-9-1977 asserting that the bus was not driven in accordance with the conditions laid down, under the Motor Vehicles Act and the Rules, as well as under the policy of insurance. The driver filed an additional counter-statement subsequent to the amendment of the claim petitions' saying that the accident was caused on account of the mechanical failure of the bus and that the bus had been driven by him very carefully- He also stated that the accident would not have taken place but for the breaking of the from drum on the left hand side of the bus. The insurer also filed an additional oounter-statement on 23-2-1978 denying the allegation that the accident occurred on account of rash and negligent driving.
4. The claimants deposed before the Tribunal that they were passengers in the bus at the relevant time; the bus was travelling at a high speed; the driver was not attentive and often looked back; the bus suddenly went off the road and hit against a mango tree as a result of which they were injured. They also stated that they were hospitalised and they gave the particulars of the expenses incurred. The driver (R. W. 1) deposed that the bus was ascending a hill at the relevant time and it was in the first gear. He was concentrating on the road and the bus was not driven at a high speed. He stated that the brake-drum broke and the wheel came off the bus. The bu8 ran further for three metres and then hit the mango tree.
5. The Regional Transport Officer, Malappuram. inspected the bus on 17-1-1977 that is, two days after the accident. In his report (Ext-Dl) he stated that the front left wheel hub flange was broken and that the wheel had separated from the vehicle. He also noted various defects. In his deposition before the Tribunal as RW. 2 he stated that the vehicle was probably in second or third gear at the time of the accident, but he was not sure and he had not noted the position of the gear in his report. He also stated that a loud sound would be heard if the flange broke. We further said that the various items of damage noticed by him could have been caused by the bus forcefully dashing against a tree. He admitted that the wheel could have come off the bus as a result of the accident.
6. The various items of damage noticed by the Regional Transport Officer in his Inspection Report show that the impact of the accident on the bus was great. The body, of the bus was badly damaged. The seats had been detached from their position. The glasses were broken. It would therefore appear that the bus was travelling at a fairly high speed. All this would not have probably occurred if, as contended by the appellants, the bus was ascending a hill at a slow speed in the first gear when the flange broke and the wheel ran off from the bus. The bus in that event would probably have lost speed before hitting the tree and the impact would have been very much less. It is significant that the driver has no case that he heard any sound which indicated damage to the flange. It is also significant that the story of the breaking of the drum was stated by the driver for the first time in his additional counter-statement.
7. Considering all the circumstances and on a proper appreciation of the evidence the Tribunal found that the accident was caused by the rash and negligent driving of the vehicle.
8. Challenging the finding of the Tribunal, the appellants' counsel, Shri Samsuddin, submits that in the claim petitions, as originally filed, it had not been stated that the accident was cause by rash and negligent driving. The al legation was inserted only by the amendment carried out pursuant to the orders of the Tribunal. Counsel therefore points out that it was an afterthought. It i.= contended that the Tribunal was not justified in finding negligence without a proper plea. Counsel further points out that the claimants also did not adduce any evidence to support the allegation of negligence on the Dart of the owner or the driver. He says that hone of the claimants could explain how the accident occurred apart from stating that the bus was running at a high speed and that the driver appeared to be not concentrating on the road. He says that the burden to prove negligence is upon the claimants who have alleged it and that the Tribunal has wrongly cast the burden upon the appellants.
9. We do not agree that the pleadings are insufficient. The claimants have stated that they were passengers in the bus owned by the 1st appellant and driven by the 2nd appellant. They have also stated that as a result of the accident they suffered personal injuries. They gave particulars of the injuries and of the loss suffered by them. By amendment of the claim petitions they inserted the allegation that the bus was driven] rashly and negligently and at a high speed. Even prior to the amendment they had in our view stated sufficient facts which speak for themselves to attract the principle of res ipsa loquitur. The bus went off the road and hit against a tree as a result of which the passengers suffered injury. The facts prima facie indicate that the accident could not have occurred but for some act of commission or omission on the part of the owner and/or the driver, it would be their burden to explain how the accident occurred. Ordinarily a bus travelling on the road could not hit a tree which stood about 8 yards awav from the road. Utilise for some reason, which the owner and/or the driver of the bus alone could explain, the bus went off the road, it was therefore incumbent upon the owner and the driver to explain at the earliest opportunity as to how the accident occurred. All that they stated was that there was no rashness or negligence on the part of the driver. It was only in the subsequent counter-statement that the driver stated that the drum broke and the wheel ran off in front of the bus. The reason for this belated answer is stated to be that the claim petitions were not dear. We do not agree. The necessary facts were stated by the claimants even before the claims were amended, and the owner and the driver should have stated their defence with all the material particulars. That apart, in our view, the amendments of the claim petitions which were allowed by specific orders of the Tribunal (and which orders were not challenged by the respondents) ought to be read into the original him petitions. When the claims are so read, the claimants had stated all the fact including the allegation regarding rash and negligent driving.
10. All that the passengers could reasonably be expected to say was that the accident occurred suddenly while the bus was in motion. In a case such as the present where the fact of the accident and the particulars of the injuries suffered are not in dispute, or have been established, the burden is upon the owner and the driver of the vehicle to prove that the accident did not occur on account of their fault or negligence. It is for those who are in management of the vehicle to assert absence of negligence on their part and establish their assertion. The facts alleged by the claimants speak for themselves, and in the absence of a proper explanation to re- but those facts, the necessary implication flowing from those facts would be that the accident was caused by the negligence of the operator and or his employees. As stated in Krishna Bus. Service Ltd. v. Mangli : 3SCR178 :
Buses in sound roadworthy condition, driven with ordinary care, do not normally overturn, ii would be for the driver who had special knowledge of the relevant facts to explain why the vehicle overturned. The maxim res ipsa loquitur would be attracted to such a case.
The two essential requirements to attract the doctrine of res ipsa loquitur are (a) that the 'thing' which caused the damage should have been under the control of the defendant or his servants and, (b) that the accident was such that it would not in the ordinary course of things have occurred in the absence of negligence. As stated by Erie C. J. in Scott v. London and St. Katherine Docks Co. (1865) 3 H and C 596:.Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the defendants, that the accident arose from want of care.
(See Winfield and Jalowier on Tort, 11th Edn., page 100). See also the principles stated by the House of Lords in Henderson v. Henry E- Jenkins & Sons (1970) AC 282.
11. The cause of the accident is a matter which is ordinarily in the special knowledge of the persons who were in management of the vehicle. If the flange or drum broke before the bus went off the road, as contended by the driver, he could not have failed to hear a loud sound. He did not hear any such sound. If it was truet as contended by him. that the wheel ran off from the vehicle before hitting the tree, it was the responsibility of the owner and the driver to adduce evidence to that effect. No independent evidence was let in on the point. Persons in the neighbourhood who had witnessed the incident could have been examined. Passengers in the bus who were not injured could also have been examined, the independent evidence was adduced to suggest that the bus climbing a hill at the time of the acci- dent. No Photograph of the bus or the site has been produced. The R. T. O. has admitted that the flange could have broken as a result of the bus hitting the tree. The presumption therefore is that the damage to the flange occurred not by reason of any mechanical failure her fore the accident, but as a direct result of the accident.
12. The facts and circumstances stated by the claimants have in our view established a prima facie case of negligence against the owner and her servant who was in charge of the vehicle and for whose acts of negligence the owner is vicariously liable. The accident could not have occurred without their negligence. Even if the mechanical failure occurred prior to the accident, and the defect was not noticed, the burden was upon the owner and the driver to prove that the defect was latent, that it occurred before, the bus hit the tree without any fault on their part, and that the existence of such defect was not discoverable by the exercise of reasonable care and caution. In all these matters the owner and the driver failed to discharge their burden. In the circumstances we are of the view that the Tribunal was perfectly iustified in coming to the conclusion that the respondents before the Tribunal were liable to compensate the claimants in respect of the injuries suffered by them. Although a ground has been taken in these appeals that the compensation awarded was excessive, no serious attempt has been made to substantiate that contention. In the circumstances we are of the view that the compensation awarded by the Tribunal is perfectly reasonable and justified in the circumstances in which the claims arose.
13. The appeals are accordingly dismissed with' costs Of the 1st respondents (claimants).