1. Heard Sri. Prabhkar Tiwari, learned counsel for the appellants, learned State Counsel and, perused the record.
2. Factual matrix of the present case as submitted by Sri. Prabhakar Tiwari, learned counsel for the appellants that on 15-5-2005 one Sri. Saurabh Rastogi alias Pawan Rastogi resident of 230 Nai Basti, pargana-Khairabad police-station Kotwali District Sitapur was coming from Namisharanaya to Sitapur on his motorcycle, bearing registration No. U.P 34 E 6811 met with an accident at about 1.30 p.m with a bus belonging to U.P State Transport Corporation (herein below referred as ‘Corporation’) with registration No. U.P 32B/2822, as a result of which he sustain grievous injuries later on succumbed to the said injuries. Although, on 21-12-2005 a claim petition filed by father and mother of the deceased Sri. Saurabh Rastogi alias Pawan Rastogi impleading therein the Corporation as respondents, which was registered as MAC No. 357 of 2005 before Motor Accident Claims Tribunal/Additional District Judge, Court No. 6, Sitapur.
3. After exchanges of pleadings, the Tribu nal for adjudication of the dispute involved, framed the following four issues:—
(Vernacular matter omitted…..Ed.)
4. On the basis of pleadings and evidence/material on record, the Tribunal had decided issue No. 1 against the defendant/appellant holding therein that due to negligence on the part of driver of die bus accident took place in which Sri. Saurabh Rastogi alias Pawan Rastogi sustained grievous injuries, later on died.
5. Issue Nos. 2 and 3 were decided against the defendants/appellants.
6. Tribunal after taking into consideration that the deceased was income tax payee and his yearly income was Rs. 52869/- decided the issue No. 4 in favour of the claimant by means of judgment and award dated 8-5-2008, awarding a sum of Rs. 601080/- with 6% interest from the date of filing of claim petition.
7. Aggrieved by the judgment and award dated 8-5-2008 passed by Motor. Accident Claims; Tribunal/Additional District Judge, Court No. 6, Sitapur, present appeal has been filed by the Corporation.
8. Sri. Prabhakar Tiwari, learned counsel for the appellants argued that in the written statement, it is specifically pleaded on behalf of the appellant/Corporation that due to negligence on the part of the deceased Sri. Saurabh Rastogi alias Pawan Rastogi, who was driving the motorcycle, accident in question has taken place as he dashed from the back side of the bus thus the deceased himself was negligent, so there is no fault or negligence on the part of the driver of the bus and as such the Tribunal while passing the award did not consider the said facts and passed the same, so the award in question is contrary to the facts of the case and perverse in nature, liable to be set aside.
9. After hearing learned counsel for the parties and going through the record, the fol lowing point, is being framed for adjudication of the dispute involved in the instant case:—
“Whether the accident in question was caused due to negligence on the part of the deceased or the bus driver?”
10. ‘Negligence’ means a breach of duty caused by the omission to do something which a reasonable man, guided to those considerations, which ordinarily regulate the conduct of human affairs, would do of doing something which a prudent and reasonable man would not do. Since no absolute rule can be laid down by which negligence or its absence can be judged in a given case, ‘negligence’ would necessarily vary in different cases and, for judging the same, all the attending and surrounding facts and circumstances of a particular case have to be taken into account.
11. The mere happening of the accident itself may be more consistent with negligence on the part of the driver than with other causes and, in that event, the Court may find negligence on the part of the driver unless he gives a reasonable explanation to show how the accident may have occurred without negligence on his part. The Maxim “res ipsa loquitur” is not a rule of law, but only a rule of evidence affecting onus. It is based on commonsense and its purpose is to enable justice to be done when the facts, bearing on causation, and the care, exercised by the driver, are at the outset unknown to the claimant and ought to be within the knowledge of the driver.
12. Normally, it is for the plaintiff to prove negligence, but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known tohim but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying principle of “res ipsa loquitur”.
13. The doctrine of “re ipsa loquitur” means mat an accident may by its nature be more consistent with its being caused by negligence for which me defendant is responsible than by other causes, and that in such a case the mere factum of the accident is prima facie evidence of such negligence. In such a case, the burden of proof is on the defendant to explain and to show that it occurred without fault on his part.
14. Where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened manner which did not connote negligence on his part.
15. In the instant matter, from the material on record, the position which emerge out is to the effect mat in order to prove accident in question and negligence on the part of driver of the bus, the claimant in addition to documentary evidence had produced and examined Sri. Rajendra as P.W-1, Sri. Tushar as P.W—2 and Sri. Pradeep Sharma as P.W-3.
16. Sri. Pradeep Sharma P.W-3, who is an eye witness of the accident, during his examination/cross-examination stated that the accident in question has taken place before him and at the time of accident, the deceased Sri. Saurabh Rastogi alias Pawan Rastogi was driving his motorcycle at a very slow speed how ever me driver of the bus turned his bus at a great speed due to which deceased dashed with the bus. The said witness also stated that accident in question caused due to negligence and rash driving by me driver of the bus Moreover from the material on record, it is also established mat driver of the bus was not produced as a witness in the matter in question, so non appearance of driver as a witness would attract an adverse inference in the matter in question while applying the principle of res ipsa loquitur.
17. So the sole arguments advanced by Sri. Prabhakar Tiwari, learned counsel for the appellants that accident in question was caused due to negligence on the part of the deceased, is perverse to the facts of the case, thus, we do not find any illegality or infirmity in the award dated 8-5-2000 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No. 6, Sitapur in MAC No. 357 of 2005. For the foregoing reasons, appeal lacks merit and is dismissed as such.
18. No order as to cost.
19. Appeal dismissed.