National Insurance Co. Ltd. v. Lalita Devi And Others

JUDGEMENT :-

R.B.Misra, J.

1 The present appeal has been preferred under section 173 of the Motor Vehicles Act by National Insurance Co. Ltd. against the order dated 5.7.2004 passed in M.A.C.P. No. 13-K of 2002 by the Motor Accidents Claims Tribunal-III, Kangra at Dharamshala (in short called 'learned Tribunal'), whereby the claim petition preferred by respondent Nos. 1 to 5 under section 166 of the Motor Vehicles Act, 1988 (in short 'the MV Act') for compensation to them in reference to the death of Mohinder Singh in a motor accident involving the truck bearing No. HP 40-1260 owned by Himachal Flour Mills, Kangra has been allowed.

2 While adjudicating the claim petition, the learned Tribunal has awarded a compensation to the tune of Rs. 5,04,000 in favour of respondent Nos. 1 to 5 with further direction to deposit Rs. 2,00,000 in favour of respondent No. 1 and respondent Nos. 2 to 4 stated to be entitled to the tune of Rs. 75,000 each and Rs. 79,000 is directed to be awarded in favour of respondent No. 5 (being mother of the deceased) and the amount to be paid to minors, i.e., respondent Nos. 2 to 4 were directed to be kept in fixed deposit, till they attain majority and the respondents were also held entitled to interest at the rate of 6 per cent per annum on the aforesaid amount of compensation from the date of petition till its realization.

3 In order to adjudicate the present appeal, it is necessary to appreciate the facts that Mohinder Singh (deceased) was directed on 1.12.2001 to ply the vehicle to supply the flour at Paragpur. However, while coming back on 2.12.2001 from Paragpur to Kangra after unloading the flour, when the vehicle reached at Purani Chungi, the driver noticed that there was a traffic jam on the main road, therefore, he took the vehicle by another route after crossing the bridge and while ascending he tried to change the gear of the vehicle but the vehicle could not take the gear due to mechanical fault, the deceased applied the brakes immediately but the vehicle became out of order. Then Mohinder Singh, deceased asked the conductor to apply gutka to the wheel of the vehicle as the vehicle was moving back. Even on application of gutka, the vehicle did not stop from rolling backward due to the slope and ultimately it fell down in the Baner khad, about 300 to 400 ft down from the road. Consequently, Mohinder Singh sustained multiple injuries on his person and succumbed to injuries on next day when he was shifted from Civil Hospital, Kangra to P.G.I., Chandigarh. The claim of compensation filed by the respondent Nos. 1 to 5, i.e., widow, minor children and the mother of the deceased Mohinder Singh, on the ground that the accident was the result of negligence and carelessness of Himachal Flour Mills, Kangra as the vehicle was not got repaired well within time. Reply on behalf of the respondent No. 6 herein was filed controverting the averments of the claim petition by denying that the said vehicle was not roadworthy. It was also denied that the said vehicle was having problem in gear and brakes.

4 According to respondent No. 6, no direction was given to the deceased to drive the vehicle and to ply the vehicle up to Paragpur and there was no jam on the main road while coming back from Paragpur to Kangra and the deceased driver without any authority took the vehicle to unworthy road to Purana Kangra and the deceased had sustained injuries because of his own negligence as there was no mechanical defect of gear as well as brakes. According to the respondent No. 6, it is a reputed concern and can never order to ply the unworthy and defective vehicle on road and nor any complaint about unworthiness of the vehicle was ever made to respondent No. 6. Since the deceased driver took the vehicle to such a route not meant for the purpose and had sustained multiple injuries on his person and succumbed to injuries due to negligence of driver, hence no claim, as prayed for, could be allowed. More so, according to respondent No. 6 herein as well as the appellant insurance company, the claim petition before the Tribunal was not maintainable as for the claim for compensation, if any, respondents could have approached before the Commissioner, Workmen's Compensation.

5 The claim of respondent Nos. 1 to 5 was also controverted by the present appellant by saying that the driver was not holding a valid and effective driving licence which was in violation of terms and conditions of the insurance policy.

6 On the basis of evidences and material on record, learned Tribunal has framed the following issues:

"(1) Whether the deceased Mohinder Singh died in an accident which took place on 2.12.2001, at Purana Kangra while he was driving the vehicle No. HP 40-1260, on account of failure of its brakes? OPP

(2) Whether the petitioners being legal heirs of the deceased Mohinder Singh are entitled to claim compensation, if so, to what extent and from whom? OPP

(3) Whether the petition is not maintainable under the provision of Motor Vehicles Act as alleged? OPR

(4) Whether deceased Mohinder Singh was not holding a valid and effective licence and he was driving the vehicle on the relevant time in contravention of the terms and conditions of insurance policy? OPR

(5) Whether the vehicle involved in the accident was duly insured with respondent No. 2? OPP

(6) Relief."

7 In order to adjudicate the claim petition, learned Tribunal has examined as many as six witnesses on behalf of claimants and two witnesses on behalf of the opposite parties.

8 Lalita Devi, wife of deceased, PW 1; Sandeep Kumar, cleaner, PW 2; accompanying the deceased in the truck/vehicle No. HP 40-1260, Chandu Lal, licence clerk of the SDM Office, Kangra, PW 3; Arjun Singh, a police constable from P.S., Kangra, PW 4; Megh Raj, PW 5, a resident of area where the accident took place, as an independent witness and Dr. D.P. Swayani, PW 6 were examined.

9 On behalf of opposite parties, N.K. Awasthi, Manager of respondent No. 6 herein, RW 1, as well as Manoj Kumar, RW 2, the Investigating Officer of F.I.R. No. 433 of 2001 dated 2.12.2001 were examined.

10 Learned Tribunal has taken into consideration the testimony of Lalita Devi, PW 1, where she deposed that she along with her minor children and mother of the deceased were dependent upon deceased as the deceased was getting Rs. 5,000 per month. As per testimony of PW 1, the deceased was giving Rs. 4,000 to Lalita Devi, i.e., wife of the deceased for household expenses, but such assertion was not denied by RW 1, therefore, the learned Tribunal relied upon the testimony of PW 1. The learned Tribunal also relied upon the testimony of Sandeep Kumar, PW 2, cleaner at the relevant time who stated that he had witnessed the accident as he along with deceased was coming back on 2.12.2001 after unloading flour when the vehicle reached at old Kangra, then due to jam on the main road the vehicle was brought through Purani Chungi Road and while the vehicle was ascending to the steep route, the gear slipped and despite applying the brakes, these did not function and the deceased driver asked him to put gutka so that the truck might stop, but despite his endeavour he failed to put gutka and the vehicle/truck in question was sliding back with very fast speed and vehicle had fallen into 300/400 ft deep khad thereby the driver got injured very badly, who was brought to Kangra Hospital and from there he was referred to P.G.I., however, he died on way to Chandigarh. PW 2 further stated that the deceased driver had many times informed the owner, respondent No. 1 that the gear and brakes of the vehicle were in bad condition and the accident in question has occurred due to technical fault/defect of vehicle. In cross-examination, he has reiterated as to what he has stated in examination-in-chief.

11 Learned Tribunal has made observations about the remarks on the F.I.R. registered by the police department and has observed that the Investigating Officer has not bothered to take into consideration the testimony of the cleaner/conductor Sandeep Kumar, PW 2, who was accompanying the vehicle in question. Dr. D.P. Swayani, PW 6, has proved on record the post-mortem of the deceased Mohinder Singh as Exh. PW 6/A and according to him, the deceased died due to ante-mortem head injury and left side cheek injury and has stated that the injuries are possible in the motor accident.

12 Learned Tribunal has also taken into consideration the testimony of N.K. Awasthi, the Manager of Himachal Flour Mills, Kangra, RW 1, who has contended that the truck could not ascend, therefore, it slided down due to steep ascend. The testimony of Manoj Kumar, the head constable, RW 2, was also analysed and according to RW 2, the incidence occurred due to negligence of the driver/deceased, whereas Sandeep j Kumar, the cleaner, PW 2, has stated otherwise. Keeping in view the testimony of PW 2, the sole person accompanying the deceased driver at the time of accident, learned Tribunal has arrived at a finding that the driver of the vehicle while driving uphill side could not take the truck ahead, therefore, it slided down. Though the driver had taken full precaution by directing the cleaner to put gutka immediately, but it was the cleaner who failed to put gutka successfully as the truck was reversing back with high speed. The reason was that the brakes of truck were not functioning. So it was concluded that the accident in question has occurred due to negligence of respondent No. 6 herein who had failed in maintaining the truck in proper manner and learned Tribunal has observed that had. the brakes and gear were in perfect condition and the vehicle was having a proper engine, it could have neither stopped while ascending nor the brakes could have become non functional when applied at the time of sliding of vehicle. Therefore, in the facts and circumstances, learned Tribunal has observed that the accident has occurred due to negligence of respondent No. 6 in maintaining the vehicle in proper condition and due to the fact that the brakes did not function at that time.

13 After taking into consideration the testimony of Chandu Lal, licence clerk of SDM Office, PW 3, learned Tribunal has also arrived at its finding that at relevant time, Mohinder Singh deceased was having valid and effective licence to drive the vehicle and the vehicle was being plied as per terms of the insurance policy. On the basis of testimony of PW 1 to PW 6 and keeping in view the testimony of RW 1 and RW 2, learned Tribunal has dealt with all the issues and has answered issue No. 1 in affirmative, issue No. 2 by awarding a sum of Rs. 5,04,000, issue No. 3 in affirmative by indicating that claim is maintainable under Motor Vehicles Act, issue No. 4 negatively by indicating that the driver was holding an effective and valid licence. Issue No. 5 in affirmative by indicating that the vehicle was insured by the insurance company.

14 On the basis of analysis, learned Tribunal has assessed Rs. 4,200 as dependency keeping in view 4-5 persons were dependent upon the deceased. So applying the unit system, giving two units to the deceased, the dependency was calculated to Rs. 3,000 per month and for one year the dependency was calculated as Rs. 3,000 x 12 = Rs. 36,000 and keeping in view the age of the deceased of 32 years and taking into consideration the judgment of Punjab and Haryana High Court in Bala v. Vasudev, 2001 (2) SLJ 1203, as well as the decision of High Court of Himachal Pradesh in case of New India Assurance Co. Ltd. v. Sandhya Jain, 2000 ACJ 426 (HP), the multiplier of 14 was applied and accordingly Rs. 36,000 x 14 = Rs. 5,04,000 was calculated as a proper compensation. Such compensation was directed to be paid as indicated above in the operative part of the impugned award dated 5.7.2004.

15 Mr. Deepak Bhasin, learned counsel for the appellant insurance company has advanced his arguments mainly on the following aspects:

"(i) Issue on negligence qua anybody was not framed by the learned Tribunal.

(ii) There was apparent misappreciation of evidence qua negligence.

(iii) Testimony of N.K. Awasthi, RW 1 and Manoj Kumar, RW 2, were not appreciated properly.

(iv) The claim for compensation was not to be adjudicated before the learned Tribunal but the claim of compensation in reference to the accident in question was to be agitated before the Commissioner, Workmen's Compensation.

(v) In the facts and circumstances, the quantum of compensation has been fixed on higher side."

16 In support of his argument, learned counsel for the appellant has submitted as below:

(i) The person responsible for accident cannot claim compensation since in the present case, the accident in question has occurred due to negligence of the deceased driver Mohinder Singh and where he sustained injuries because of his own fault, therefore, his dependants/family members are not entitled for any compensation under Motor Vehicles Act in view of the decision in United India Insurance Co. Ltd. v. Bhupinder Singh, 1996 ACJ 1122 (J&K), where it was held that person responsible for causing accident cannot claim compensation by taking recourse to section 166 (1) of Motor Vehicles Act.

(ii) In view of the judgment of this court in Sukhwant Kaur v. Sher Singh, F.A.O. No. 410 of 2002; decided on 8.5.2008, negligence has to be proved before awarding compensation and since the claimants- respondent Nos. 1 to 5 herein, have not been able to prove the negligence of other party by which the said accident in question has occurred and the injuries were inflicted upon the deceased, as such, in such circumstances under the Motor Vehicles Act the compensation was not to be awarded.

(iii) The driver took the vehicle in a different route which was not generally a specified or popular route. In view of the statement of N.K. Awasthi, RW 1, that on the fateful day when the deceased driver deviated from the main route then it would be treated as his own fault and negligence, as such, the claim of compensation was not to be awarded in view of the decision in Chaurasia & Company v. Pramila Rao, AIR 1975 MP 31: 1974 ACJ 481 (MP). The relevant para of Chaurasia & Co. 's case is quoted below:

"The driver of a motor bus attempted to cross a submerged causeway and the bus got stuck midway. The passengers refused to get down and cross to the shore as the current was too strong. The bus was washed away causing the death of some of the passengers. Held, that the driver owed a duty of care for the safety of the passengers. The driver was in breach of his duty in crossing the sub-merged causeway under about 2 ft of a strong current of water and was therefore guilty of negligence. Held, (a) that the death of the passengers must be held to have been caused by the negligence of the driver. In deciding whether a particular damage was caused by a negligent act it has to be seen whether it was a direct consequence of the negligent, act and whether it was foreseeable. If the persons affected by the negligent act of the defendant are exposed to risk of misjudgment of accident which would not have otherwise arisen, further damage from the materialisation of this risk may be recoverable. A reasonable act done by the persons affected by the negligence, in a dilemma created by the negligent act cannot be held to be novus actus interveniens which breaks the chain of causation."

(iv) When N.K. Awasthi, the manager of the respondent No. 6, RW 1, has said that the driver was being paid Rs. 1,800 per month, then in that condition, the fixation of salary as Rs. 4,000 was not to be made by learned Tribunal and taking the salary as per testimony of PW 1, the entire compensation has been fixed on higher side. For this purpose, reliance has been made by Mr. Deepak Bhasin on the decision of Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. Meena Variyal, 2007 ACJ 1284 (SC) and Andhra Pradesh High Court in Addala Lakshmi v. G. Subhadramma, I (2004) ACC 363, has observed that if driver himself is injured or dies in motor accident on account of his own negligence, then claim could be laid only under 'no fault liability' of the Motor Vehicles Act and on analysis of various judgments of Supreme Court and High Courts has elaborated the parameters as below in para 36: "(a) In case of workman involving himself in accident on account of his own negligence, he cannot be allowed to claim the compensation under the provisions of the Motor Vehicles Act as it cannot be said to be giving rise to a claim under both the Acts as negligence on the part of the driver is an essential element to be proved for approaching the Tribunal under the Motor Vehicles Act. The workman or in case of his death, (sic) have to necessarily approach the Commissioner for Workmen's Compensation.

(b) However, such person or his legal heirs are entitled to seek compensation either under section 140 or 163-A of Motor Vehicles Act.

(c) If the employees of the owner of the motor vehicle are involved in accident arising out of and in the course of employment, they are not required to prove negligence on the part of the driver of that vehicle to the extent of amount allowable under Workmen's Compensation Act. But, if they intend to claim higher amount under the provisions of Motor Vehicles Act under fault liability, negligence of the driver has to be established before the Tribunal. In such an event, the liability of the insurance company is restricted to the amount permissible under the Workmen's Compensation Act and the balance liability has to be fastened on the owner of the vehicle."

17 According to Mr. Deepak Bhasin, the learned counsel for the appellant, the testimony of RW 1 and RW 2 reveals that the deceased Mohinder Singh had died because of own negligence.

18 Mr. A. Burathoki, learned counsel appearing on behalf of respondent Nos. 1 to 5, on the other hand, has submitted that in view of the decision of this court in New India Assurance Co. Ltd. v. Rattu Devi, 2007 ACJ 2554 (HP), the claim compensation in reference to the death of a labourer even during his deployment/engagement on a truck could be maintainable as motor vehicle case or workmen compensation case, but case of compensation was said to be rightly adjudicated in view of the decision in Oriental Insurance Co. Ltd. v. Kamlesh Sharma, 2007 ACJ 2562 (Uttaranchal), relying on the earlier decision of Supreme Court in Rita Devi v. New India Assurance Co. Ltd., 2000 ACJ 801 (SC), similar view was reiterated and it has been held by the High Court of Uttaranchal that the claim of compensation under the Motor Vehicles Act is maintainable to the claimants with reference to the death of a mechanic while repairing bus when its driver drove it and the mechanic was crushed under it. It was also held that the claimants could have preferred claim under the Workmen's Compensation Act, 1923 as well as under Motor Vehicles Act, 1988 , but not under both. In Sharad Ganpat Deshmukh v. Kunda Ashok Polade, 2004 ACJ 1266 (Bombay), whereas even the amount of compensation received without making claim under Workmen's Compensation Act, cannot take the right of claimant to move under Motor Vehicles Act.

19 As argued by the learned counsel for the respondent Mr. A. Burathoki that even the Hon'ble Supreme Court in Union of India v. Bhagwati Prasad, 2002 ACJ 721 (SC), has allowed the claim of compensation under Motor Vehicles Act in view of the facts and circumstances when the accident of a driver and passengers moving in a vehicle took place due to fault of railway staff as the railway crossing was kept open for traffic.

20 According to Mr. A. Burathoki, the judgment in Sukhwant Kaur's case, F.A.O. No. 410 of 2002; decided on 8.5.2008, is not applicable in the present facts and circumstances as the claimants in the above case had filed a claim without proving that deceased had died because of negligence of some other person and the claimants moving petition under sections 140, 163-A and 166 of Motor Vehicles Act, claiming the compensation from Sher Singh, owner of the tractor and Oriental Insurance Co. Ltd. with whom the tractor was insured on the ground that deceased Mohinder Singh was an agriculturist and the driver while driving the tractor met with an accident due to failure of brakes and while driving the vehicle fell down and sustained injuries. In that case, learned Tribunal since has rejected the claim by holding that Sukhwant Kaur and others have failed to prove the negligence of any party. In such circumstances, the court has made an observation as below:

"In our considered view section 163-A of the Act is not at all applicable to the facts of this case. In fact the petition under section 163-A of the Act was not maintainable in view of the fact that the income of the deceased was stated to be more than Rs. 40,000 per anhum. The Apex Court in Deepal Girishbhai Soni v. United India Insurance Co. Ltd., 2004 ACJ 934 (SC), has clearly laid down that where the income of the deceased victim is more than Rs. 40,000 per annum, the claimants are not entitled to file a petition under section 163-A of the Motor Vehicles Act. The Apex Court made the following observations in paras 51 and 67 of the judgment: '(51) The scheme as envisaged under section 163-A, in our opinion, leaves no manner of doubt that by reason thereof the rights and obligations of the parties are to be determined finally. The amount of compensation payable under the aforementioned provisions is not to be altered or varied in any other proceedings. It does not contain any provision providing for set off against a higher compensation unlike section 140. In terms of the said provision, a distinct and specified class of citizens, namely, persons whose income per annum is Rs. 40,000 or less is covered thereunder whereas sections 140 and 166 cater to all sections of society.

(67) We, therefore, are of the opinion that Kodala's case, 2001 ACJ 827 (SC), has correctly been decided. However, we do not agree with the findings in Kodala (supra), that if a person invokes provisions of section 163-a, the annual income of Rs. 40,000 per annum shall be treated as a cap. In our opinion, the proceeding under section 163-A being a social security provision, providing for a distinct scheme, only those whose annual income is up to Rs. 40,000 can take the benefit thereof. All the other claims are required to be determined in terms of Chapter XII of the Act.' Therefore, the petition under section 163-A of the Act was not maintainable. Since trial has taken place, issues were framed, evidence led and no party raised any objection before the learned Tribunal, we proceed to treat this petition under section 166 of the Act.

As observed by us above, this petition cannot be treated to be a petition under section 163-A of the Act. Under section 166 of the Act it is incumbent upon the claimant to prove the negligence of some other person. In the present case though the allegation was made that the accident occurred due to failure of brakes, no evidence was led to show how the accident occurred. The Supreme Court in Oriental Insurance Co. Ltd. v. Meena Variyal, 2007 ACJ 1284 (SC), has held as follows:

'(23) Learned counsel for the respondent contended that there was no obligation on the claimant to prove negligence on the part of driver. Learned counsel relied upon Gujarat State Road Trans. Corpn. v. Ramanbhai Prabhatbhai, 1987 ACJ 561 (SC), in support. In that decision, this court clarified that the observations in Minu B. Mehta 's case, 1977 ACJ 118 (SC), are in the nature of obiter dicta. But, this court only proceeded to notice that departures had been made from the law of strict liability and the Fatal Accidents Act by introduction of Chapter VII-A of the 1939 act and the introduction of section 92-a providing for compensation and the expansion of the provision as to who could make a claim, noticing that the application under section 110-A of the Act had to be made on behalf of or for the benefit of all the legal representatives of the deceased. This court has not stated that on a claim based on negligence there is no obligation to establish negligence. This court was dealing with no fault liability and the departure made from Fatal-Accidents Act and the theory of strict liability in the scheme of the Act of 1939 as amended. This court did not have the occasion to construe a provision like section 163-A of the Act of 1988 providing for compensation without proof of negligence in contradistinction to section 166 of the Act. We may notice that Minu B. Mehta's case, 1977 ACJ 118 (SC), was decided by three learned Judges and the Gujarat State Road Trans. Corpn. 's case, 1987 ACJ 561 (SC), was decided only by two learned Judges. An obiter dictum of this court may be binding only on the High Courts in the absence of a direct pronouncement on that question elsewhere by this court. But as far as this court is concerned, though not binding, it does have clear persuasive authority. On a careful understanding of the decision in Gujarat State Road Trans. Corpn., 1987 ACJ 561 (SC), we cannot understand it as having held that in all claims under the Act proof of negligence as the basis of a claim is jettisoned by the scheme of the Act. In the context of sections 166 and 163-A of the Act of 1988, we are persuaded to think that the so-called obiter observations in the case of Minu B. Mehta (supra) govern a claim under section 166 of the Act and they are inapplicable only when a claim is made under section 163-A of the Act. Obviously, it is for the claimant to choose under which provisions he should approach the Tribunal and if he chooses to approach the Tribunal under section 166 of the Act, we cannot see why the principle stated in Minu B. Mehta's case (supra) should not apply to him. We are, therefore, not in a position to accept the argument of learned counsel for the respondents that the observations in Minu B. Mehta's case (supra) deserve to be ignored.' Since negligence has not been proved there is no merit in the claim petition. The learned Tribunal has rightly only awarded a sum of Rs. 50,000 under no fault liability. The appeal is without any merit and is accordingly dismissed. No costs."

21 According to Mr. A. Burathoki, the learned counsel appearing on behalf of respondents, the above judgment of this court (DB) is not applicable because the facts and circumstances of the present case are different specifically because the negligence has been proved by learned Tribunal in the present case on the basis of testimony of PW 2. Learned counsel for the respondent has submitted that the issues are very specific and if dealt with properly is sufficient to answer the relevant and basic point which is sufficient for deciding the claim of compensation in the present case and, therefore, it was not necessary to make any issue in reference to the negligence alone when relevant issue as issue No. 1 was made by the learned Tribunal.

22 According to Mr. Burathoki for the respondent Nos. 1 to 5 when the claimants in their claim petition in para 24 of the claim petition has asserted the cause of death with brief description by specifically submitting that the accident is the net result of negligence and carelessness of the respondent and Himachal Flour Mills, Kangra (respondent No. 1 before Tribunal) since could not get the vehicle repaired well within time, therefore, National Insurance Co. Ltd. (respondent No. 2 before Tribunal) being the insurer of the vehicle is jointly and severally liable to pay compensation to the petitioner.

23 According to Mr. Burathoki, keeping in view the pleadings made in the claim petition and material on record, issue No. 1 framed was most vital, relevant and appropriate which has been decided in affirmative in favour of claimants, therefore, the appellant cannot be allowed to say at this stage regarding the framing of any other issue, whereas, the opposite parties before the learned Tribunal being respondents were free to come forward for framing of specific issue, if any, if so advised to do so according to their choice, however, they failed to do. As such their submission on this aspect is without any legal force. The driving of the vehicle by the deceased Mohinder Singh by taking an alternative road or a route was not prohibited as per insurance policy since in the prevailing facts and circumstances, deceased driver had taken the vehicle in unloaded condition by that route whereon he was in the habit of driving and no evidence was ever brought by the respondent No. 6 herein or by the appellant herein that any competent authority has specifically prohibited to take any vehicle to the said route opted by the deceased. No expert opinion was also ever produced that the vehicle in question was new or in roadworthy condition or it was certified by the workshop that it was perfectly in a worthy condition to be taken on the road, whereas the deceased had always been reporting to the respondent No. 6 that the vehicle was in poor condition requiring repair. This aspect was also corroborated by the testimony of PW 2. According to Mr. Burathoki when the finding of Tribunal on issue No. 1 regarding failure of brakes was conclusive then the framing of issue of negligence by Tribunal was redundant. However, during the pendency of claim petition the appellant as well as respondent No. 6 could have come forward about framing of issue on negligence in particular if they were so advised, therefore, they cannot take advantage of their own slackness regarding framing of such issue.

24 According to Mr. A. Burathoki, the testimony of PW 2 is corroborating the testimony of an independent witness PW 5. In the facts and circumstances, the lack of proper or poor maintenance of vehicle by owner was sufficient for awarding compensation in view of the decision in Gurbaksh Rai v. Chandgi Ram, 1996 ACJ 1276 (Delhi). In Kartik Ram v. Chandra Gopal, 1998 ACJ 1118 (MP), the High Court of Madhya Pradesh has observed as below:

"(7) ...In the circumstances, when the accident is admitted and the defence taken by the owner of the vehicle that it was due to mechanical breakdown due to latent defect has not been established, even if the witnesses examined who were travelling in the trolley could not see the manner and the circumstances in which the accident occurred to remove hardship to claimants the principle of res ipsa loquitur could be safely applied, which is a rule of evidence departing from the rule that it is for the claimants to prove negligence, but in such cases considerable hardship is caused to the claimants as the true cause of the accident is not known to them but is solely within the knowledge of the person who caused it. The claimants can prove the accident but cannot prove how it happened to establish negligence. This hardship is to be avoided by applying the said principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident 'speaks for itself or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the claimants to prove the accident and nothing more. The present case is like that where the accident speaks for itself. When this principle is applied the burden shifts upon the owner and driver to establish that the accident was not caused due to their negligence which in the case has not been discharged. The presumption of negligence is not rebutted by the mere fact that there was mechanical breakdown but the burden was further on them to prove that there was no want of reasonable care and the vehicle was kept in order.

(8) The contention that the deceased was negligent as be was sitting on the mudguard of the tractor cannot be accepted. True, a driver when driving a tractor shall not carry any person to be carried on the tractor. But, in this case the respondent No. 1 permitted and carried the deceased on the tractor. The accident was not caused due to any act of the deceased who was carried on the tractor but due to breakage of hooks of connecting rod as the defence is. Carrying the deceased on the tractor may be a breach of the traffic regulations but would not absolve the driver, owner and insurer of their liability for tortious act. This court, in a case where the bus was overloaded but the accident occurred due to negligent driving of the bus, held that it may be a penal offence for the breach but that would not absolve the insurance company to claim exoneration from the liability to indemnify the owner for the claim of third party. [See New India Assurance Co. Ltd. v. Pravina Singh, M.A. No. 444 of 1995; decided on 25.9.1996]. In M.P. State Road Trans. Corpn. v. Rajendra Prasad Gupta, M.A. No. 728 of 1994; decided on 23.9.1996, where the motorcyclist was driving the motor cycle in breach of section 128 of the Act corresponding to section 85 of the Act of 1939 as he was carrying on more than one person in addition to himself, this court held that for that the motorcyclist may be liable to be prosecuted but that will not disentitle him to claim compensation if rash and negligent act of the offending vehicle is established. In the circumstances, we hold that the accident was caused due to negligent act of driver and owner who are liable to pay compensation.

(13) .. At the relevant time, the tractor was carrying agricultural labourers in trolley drawn by tractor which was not prohibited by law. The learned counsel could not point out from the policy that carrying agricultural labourers in trolley was prohibited by any of the terms of the policy and the risk was not covered. Hence, we are of the view that respondent No. 3 cannot escape its liability to pay compensation or to indemnify the owner."

25 In view of the decision in Chhaya Mishra v. Oriental Insurance Co. Ltd., 2002 ACJ 1634 (MP), the insurance company was even liable to pay the compensation where the son while driving insured car belonging to his father had caused the accident when the car strayed and struck against a roadside tree due to sudden mechanical defect. Relevant para 4 is extracted below:

"(4) The question for determination is whether finding of the Tribunal with respect to negligence on the part of Rajesh Dubey is sustainable. Learned counsel for Oriental Insurance Co. Ltd. contended that finding of negligence of the deceased Rajesh Dubey has been recorded by the Tribunal, therefore, it should not be disturbed. This submission cannot be appreciated. The question is on what evidence, this finding has been recorded by Claims Tribunal. The defence taken by the insurance company is thoroughly vague and indefinite. It has simply said that there is violation of terms and conditions of insurance policy but which conditions, it has not been specifically pointed out. Except for filing the reply, no effort was made to lead evidence in support of the plea it had taken in the statement. It transpires that the Claims Tribunal arrived at this conclusion on the statement of Manirani Gupta. But on perusal of the statement of this witness, it is found that her statement does not support the finding of the Claims Tribunal. She is the only surviving member in the accident. She states that all of a sudden the vehicle got strayed and struck against roadside tree. Therefore, it can- not be said that accident took place due to rash and negligent driving of the vehicle by deceased Rajesh Dubey. No question to this effect was suggested to Manirani Gupta by the party contesting the case. Consequently, the finding is not in accordance with the evidence and it can be said that accident took place because of mechanical defect the vehicle had, as contended by the claimants."

26 I have heard learned counsel for the parties and have also gone through the contents of testimony of the witnesses. PW 2 who was said to be a cleaner accompanying the deceased driver at relevant time has very categorically stated that the accident has taken place due to technical fault and carelessness of the owner of the vehicle and by failure of brakes and gear. In my respectful consideration, the sole testimony of the accompanying cleaner, PW 2 cannot be overlooked, more so, when the testimony of PW 2 is corroborated by the testimony of Megh Raj, PW 5, an independent witness and a resident of old Kangra where accident occurred. PW 5 has very categorically stated that at about 8-8.30 p.m. the driver had been crying that put on gutka/stone as brakes of vehicle have failed and because of failure of brakes, the vehicle in question slided downward and the cleaner even after getting off the sliding vehicle had endeavoured to put gutka but had failed to put gutka and the vehicle had fallen down in khad thereby driver sustained injuries. In my respectful consideration, nothing has been brought on record that the said vehicle was certified by any approved workshop to be in a roadworthy condition. The driver was since in the habit of taking the vehicle on that route which was opted by him on the fateful day, therefore, it cannot be believed that the driver knowingly would put his life at a risk by driving the vehicle in question on such route, whereas the route opted by the driver was not prohibited for taking a vehicle, more so, the driver drove the vehicle in question loaded with flour and had successfully unloaded articles at the destination and was taking the unloaded vehicle on the said track.

27 I find force in the contentions of the learned counsel for the claimants that when the relevant, vital and necessary issue which goes to the root of the case for adjudication of claim was framed and claim of compensation was successfully proved on such issue No. 1, then there was no necessity to frame another issue of negligence, whereas, the testimony of PW 2 corroborated by PW 5 is sufficient to prove the negligence of the owner in maintaining the vehicle in the light of the assertion made in the pleadings of para 24 of claim petition before the Tribunal as indicated above. The claim of compensation under Motor Vehicles Act has rightly been adjudicated upon and keeping in view the facts and circumstances, the salary of the deceased has rightly been fixed and the multiplier has correctly been applied and on such parameters the claim of compensation has rightly been awarded.

28 On the basis of the material on record and keeping in view the testimony of PW 1, PW 2 corroborated by PW 5, it could safely be concluded that the said accident has occurred due to failure of brakes and due to negligence of the owner in maintaining vehicle properly and because of the negligence on the part of the owner, both owner as well as appellant insurance company are jointly liable to pay compensation. It also goes without saying that if the appellant as well as respondent No. 6 were so particular about framing of specific issue on negligence, then they could have resorted to the provisions of Order 14 of Civil Procedure Code. Order 14 of Civil Procedure Code deals with settlement of issues and determination of suit on issues of law or on issues agreed upon. Order 14, rule 1 deals with framing of issue. Order 14, rule 1 (6) provides that nothing in this rule requires the court to frame and record issues where the defendant at the first hearing of the suit makes no defence. Order 14, rule 3 deals with materials from which issues may be framed and Order 14, rule 4 deals with the provisions when the court may examine witnesses or documents before framing issues. Order 14, rule 5 deals with power to amend and strike out issues. It was held by this court in Om Prakash Rawal v. Justice Amrit Lal Bahri, AIR 1994 HP 27, that the issues to be framed with regard to those pleadings which are asserted by one party and denied by the other. In view of the decision in Monoranjan Paul v. Narendra Kumar Paul, AIR 1994 Gau 64, non-framing of an important issue is not fatal if it does not prejudice to any of the litigants as both parties were aware of the issues and led evidence. Therefore, the submission advanced on behalf of appellant that failure on the part of learned Tribunal in framing issue in respect of negligence vitiates the claim, is devoid of any force and merit as the issue regarding failure of brakes of the vehicle involved in accident was specifically framed which goes to the root of the case and after adjudicating of such an important and vital issue, there is no scope left of framing of any specific issue specifically on negligence separately.

29 However, in view of the aforesaid analysis, in my respectful consideration, the claim of compensation has rightly been entertained and has correctly been adjudicated upon by learned Tribunal. I do not find any illegality and impropriety in the award passed by Motor Accidents Claim Tribunal, therefore, the present appeal being devoid of any merit, is dismissed accordingly.