(1.) Both the appeals relate to two cases for compensation arising out of the same accident, in which two clerks of the office of R. T. O. Sundargarh died. The accident is of a Govt. Jeep which took place on 9-1-1977 at about I A. M. The age of the deceased Lingaraj Behera in Miscellaneous Appeal No. 51 of 1979 was 26 years and he was having income of Rs. 270.00 per month (as appears from the written statement) as a Lower Division Cferk. In Misc. Appeal No. 52 of 1979 the deceased was Bipin Bihari Pradhan aged about 25 years. The legal heirs of late Lingaraj Behera claimed Rs. 10,800.00 and the claimants of deceased Bipin Bihari Pradhan laid a claim of Rs. 49,680.00.
(2.) In the morning of 9-1-1979 at about 7 A. M. the R. T. O. Sundargarh went to Purunapani via Biramitrapur for checking of vehicles. The Junior Motor Vehicle Inspector (O, P. W. 2) and one Sri G. C. Patnaik, the Enforcement Inspector also accompanied him. P. W. 3 was the official driver of the jeep. The two deceased persons, namely, Bipin Bihari Pradhan and Lingaraj Behera and two constables were in that jeep. After 11.30 P. M. in the night, the occupants of the jeep had their dinner at Rajgangapur. Thereafter the jeep was driven by the Enforcement Inspector, G. C. Patnaik. While Sri Painaik was driving the jeep the accident took place at 2/3 K. Ms. before reaching Paramdihi. The jeep dashed against a tree. The Enforcement Inspector who was driving the jeep died at the spot and the two Lower Division Clerks, namely Lingaraj Behera and Bipin Bihari Pradhan also died at the spot. State of Orissa, the defendant, in the written statement has admitted the accident but has contended that the accident took place due to bursting of the rear tyre of the jeep and that the State is not liable as the accident took place while discharging sovereign functions. The Claims Tribunal has disallowed the claims in both the cases on two grounds: (1) The State is protected as the sovereign function was being discharged by its employees; and, (2) That the accident was due-to bursting of tyre.
(3.) There is no dispute about the fact that the R. T. O. (O. P. W. 1) and the Junior Motor Vehicle Inspector (O. P. W. 2) and Sri Patnaik, the Enforcement Inspector as well as two Lower Division Clerks had gone in the Government jeep. It is also not disputed that P. W. 3 was the official driver of the jeep. All of them had their meals at about 11.30 P. M. at Rajgangapur. Thereafter admittedly the jeep was driven by Sri G. C. Patnaik, the Enforcement Inspector. While Sri Patnaik was driving the jeep and these two L. D. Clerks as well as O. P. W. 1, O. P. W. 2 and P. W. 3 were inside the jeep, the accident took place. It is also not disputed that the jeep dashed against a tree. It is contended by Mrs. Padhi, the learned counsel for appellants that the findings of the Tribunal that the officers were discharging sovereign function is wrong and that it was not a case of bursting of tyres. The learned standing counsel vehemently opposed the contentions raised by the learned counsel for the appellants contending that on the principle of res ipsa loquitur it cannot be said that the State is, in any way, liable and that it was a clear case of sudden bursting of tyres resulting in the accident. 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 to him 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 the principle 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 ttself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his negligence. When 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 in a manner which did not connote negligence on his part. For the, application of the principle it must be shown that fee vehicle was under - the management of the defendant and that the accident is such as in ordinary course of things does not happen if those who had the management used proper care (See Pushpabai Parahottam Videshi v. M/s. Ranjit Ginning & Pressing Co. (P. Ltd., AIR 1977 SC 1735) It appears from the evidence of O. P. W. 3, the A. S. I. of Police who went to investigate, found that the right front wheel of the jeep was completely detached from the vehicle and was lying at some distance. Further, he noticed that the rim of the wheel was bent. It would thus appear that the accident was a serious one. Undoubtedly, Sri Patnaik who was driving the jeep also died at the spot as well as the two Lower Division Clerks. From the evidence of the driver P. W. 3, it appears that at Rajgangapur after they took their meals, Sri Patnaik asked him to bring some cigarettes. By the time he brought the cigarettes, Sri Patnaik was holding the steering sitting on the driver's seat. P. W. 3 gave the cigarettes to Sri Patnaik and when he wanted to drive the jeep, Sri Patnaik told him that the front seat was not enough to accommodate four persons and asked him to go to the rear seat and drove the vehicle. He further states that he was aware of the administrative instructions that the jeep was not to be handled by any one excepting himself unless the authority permits to drive the vehicle. In that night he allowed Sri Patnaik to drive the jeep as his higher authority, the R: T. O. did not object to the driving of the jeep by Sri Patnaik. He has further stated that the front tyres of the jeep were almost brand new and he had checked all these lyres before taking out the jeep and he did not find any damage or any crack mark on any of the tyres. From the evidence of the driver as well as from the evidence of other witnesses, it appears that the road was a good road with black top excepting a little portion, which was morum and the said morum portion was also in good condition. From the written statement filed by the State, it appears that when the jeep went with an 'U' turn, there was down gradient towards Paramdihi and whilee negotiating thai portion mere was burrsting of the tyre. If is evident from the written statement mat the accident took place while the jeep was negotiating one 'U' turn and was a down gradent road. The witnesses have stated that the jeep was in 50 to 60 K. Ms. speed. II would thus appear that the person' who was driving the jeep in the midnight Would have been careful in driving the jeep while it was taking a complete, turn on the road and was in a down gradient motion. Undoubtedly, it amounts to rash and negligent driving. The next question is whether there was bursting of tyres prior to the accident and the accident was due to bursting of tyres. The R. T, O. and the Junior M. V. I. have stated that they heard a sound of bursting of tyre but the driver who was in the jeep has clearly stated that he did not hear any sound of bursting of tyre prior to the accident. The position of the jeep and the condition of the wheel as stated by O. P. W. 3, the Investigating Officer clearly show that the wheel had gone out of the jeep. It, therefore, appears that the impact was so heavy and bursting of tyres can be the result of the impact. This fact is reinforced by the statement of the driver that the tyre which is said to have burst was a new tyre and was in good condition and it had been checked before the vehicle started. The evidence of O. P. Ws. 1 and 2 is not very clear about the bursting of tyre. Only they heard a sound like bursting of tyre and Sri Patnaik could not control the steering of the jeep. Curiously enough none of them said anything at that time. The cumulative effect of the evidence available on record is that at midnight while the jeep was taking in 'U' turn and was on a down gradient motion running at 50 to 60 K. Ms. speed having brand new tyre and there being no clear evidence about bursting of tyre, the reasonable inference is that the bursting of tyre was the result of the impact of the jeep with the tyre and the wheel had gone out of the jeep.