GENERAL ASSURANCE SOCIETY LTD Vs. JAYALAKSHMI AMMAL

JUDGEMENT

(1.) THIS is an appeal by the insurance Co. with which the vehicle --Lorry MSM 1078 belonging to the third respondent Babu Reddi and which was involved in an accident on 25-5-1970 at about 3-30 p. m. on the Poonamallee High Road which resulted in the death of one Chandran, the husband of the first respondent and father of the second respondent was insured. The Claims Tribunal awarded a sum of Rupees 10,000, as compensation to be paid to the first and second respondents and the Insurance Co., the appellant herein was directed to pay compensation.

(2.) IT is contended in this appeal that the Tribunal erred in finding that the accident was due to the negligent driving of the vehicle by the driver of the vehicle and it also erred in awarding such a huge sum as Rs. 10,000 as compensation and thirdly that the liability of the appellant as the insurer was limited to the extent of the liability arising under the Workmen's Compensation Act. On the question as to whether there was adequate proof before the Motor Accidents Claims Tribunal for the rash and negligent driving of the lorry by the employee of the third respondent, the finding of the Tribunal has not been seriously challenged in this appeal. Moreover, the appellant Insurance Co. is precluded from raising the defence by reason of Section 96 (2) of the Motor Vehicles Act where the insurer can defend the action only on the grounds specified in that subsection. This has also been made clear by the Kerala High Court by the decision in Kesavan Nair v. State Insurance Officer, 1971 Ace CJ 219 (Ker) and in the decision in British India General Insurance Co. Ltd. v. Captain Itbar Singh, and Mangilal v. Parasram, (FB). In Orissa Cooperative Insurance Society Ltd. v. Bhagaban, 1971 Acc CJ 49 (Orissa) it was held that the Insurance Co. is not allowed to raise any plea outside the scope of the pleas specified in Section 96 (2) of the Motor Vehicles Act, but if it has reserved a right in the policy to defend an action in the name of the insured, it can raise all the pleas that may be open to the insured, with the permision of the Tribunal. In the case now before me, however, there is no such reservation of right in the policy in question. Therefore in this case the insurer was not enlitled to contend that the accident was not due to rash and negligent driving of the lorry by the third respondent's employee. In Howrah Insurance Co. Ltd. v. Sundaram, 1974 TLNJ 58, also it has been made clear that the effect of Section 96 (2) and Sub-section (2-A) in Section 110-C of the Motor Vehicles Act is that the Insurance Co. would normally be confined in its defence to the grounds specified in Section 96 (2). But under the exceptional circumstances contemplated in Sub-section (2-A), they would have the additional privilege of raising the defences which are normally available only to a person against whom the claim has been made, if either of two conditions precedent are satisfied, viz., (1) there is collusion between the person making the claim and the person against whom the claim is made; or (2) the person against whom the claim is made has failed to contest the claim. But where neither of these two pre-conditions exist, the insurer would be confined in his defence to the grounds that have been enumerated in Section 96 (2) which imposes a statutory embargo upon insurance companies raising any defence to the action similar to the one raised in that appeal which was that the accident was not due to rashness or negligence of the driver of the vehicle. In the case now before me none of these two pre-existing conditions exists.

(3.) IN Gobald Motor Service Ltd. v. R. M, K. Vehisami, it was held by the Supreme Court in terms that where such an inanimate injurious agency and the surrounding circumstances are all entirely within the defendant's control and the accident takes place which originally could not happen if the defendant had taken proper care or had not remained negligent the doctrine of res ipsa loquitur applies, where the event charged as negligence tells its own story of negligence on the part of the defendant. In this case, the inference is that the defendant is liable unless he in the first instance discharges the burden to disprove his liability by saying that the accident could resonably happen without negligence on his part. In Henderson v. Hendry E. Jenkins and Sons, 1969-3 All ER 756 (HL), Lord Pearson made this distinction between evidential burden of proof and formal (or legal or technical) burden of proof in such negligence cases. The learned Judge observed that in any action for negligence, the plaintiff must allege and has the burden of proving that the accident was caused by the negligence on the part of the defendant. This is the issue throughout the trial and the formal burden of proof does not shift. But if in the course of the trial there is proved a set of facts which raise a prima facie inference that accident was caused by negligence on the part of the defendant the issue will be decided in the plaintiff's favour, unless the defendant by his evidence provides some answer which is adequate to displace the prima facie inference. It is in this situation that it is said that the evidential burden of proof rests on the defendant in such cases.