JINDER SINGH ALIAS RAJINDER SINGH Vs. NAIB SINGH

JUDGEMENT

(1.) APPELLANT , Jinder Singh alias Rajinder Singh on November 21, 1972, at about 3.15 p.m., when he was going from Kesar Ganj to Mandi Ludhiana and had reached Dugri Road, was knocked down from behind by truck No. PUP 8391 and the front wheel of the truck passed over his right leg resulting in the fracture of his right tibia, fibula and medial mallealus. He, therefore, filed the present claim petition claiming Rs. 957.85 as expenditure on his treatment and Rs. 25,000/ - as compensation for the injuries received. The claim was opposed by the driver, the owner of the truck and the insurance company. The three Respondents denied the averments made in the petition and the involvement of the truck in the alleged accident.

(2.) AFTER appreciating the evidence led by the parties, the Tribunal held that though it was proved that the claimant was run over by truck No. PUP 8391, yet as it was not established that the truck was driven at that time by Respondent No. 1, none of the Respondents would be liable to pay any compensation. While deciding the issue on the quantum of compensation it assessed the expenses incurred by the injured at Rs. 1,400/ - to which he was held entitled ' and no amount was allowed on account of physical and mental pain suffered because of these injuries.

(3.) THIS dictum was followed by a Division Bench of the Madhya Pradesh High Court in Gyarsilal Jagannathprasad's case . Although in both these cases the person who was driving the vehicle was known, whereas in the present case, it is not so, yet that fact would be of no consequence and the principle laid down therein would be applicable in both the situations because the ratio of the said decisions obviously is that once it is proved that a particular vehicle was involved in an accident, the fact as to who was driving and under what circumstances is in the knowledge of the owner and it would be for him to prove the same to escape from the responsibility. The argument of the learned Counsel for the Respondent based on a decision of the Federal Court of Malaysia in Karthiyayani v. Lee. Leong Sin, 1975 A.C.J. 440 (F.C., Malaysia), that unless it is shown the person driving was a servant of the owner or acting on his behalf as his agent, he would not be liable, has no direct bearing on the question at hand because this abstract proposition of law is not under debate. What is advocated by the learned Counsel for the Appellant, as already noticed above, is that once it is proved that the vehicle involved in the accident belonged to Respondent No. 2, it was for him to prove the facts and circumstances absolving him of his liability and in the absence of such proof, the Tribunal would be legally justified to raise the presumption that the vehicle was being driven by someone who was either under the employment of the owner or was so doing with his express or implied consent. To controvert this proposition which was approved in the above -mentioned cases no decision to the contrary was cited by the learned Counsel for the Respondents. That apart, even the dictates of justice would require that it should be the burden of the owner of the vehicle to show that it was being driven by someone not under his control as otherwise it is likely to result in grave miscarriage of justice. In cases, where a pedestrian, cyclist or a person going on motor bike or rickshaw is hit from the back by a truck or other such heavy vehicle it would not be possible for the injured to recognise the driver if he hits and runs away. In these circumstances, the injured or the heirs of the deceased cannot reasonably be expected to name the driver or prove as to who was driving the vehicle and under what circumstances. To require the claimant to establish the said fact could also mean the perversion of the cardinal rule of evidence that when a person has the special means of knowledge of a fact it is for him to prove the same. Therefore, respectfully agreeing with the rule of law laid down by Beaumont, C.J. in Liladhar Chaturbhuj's case : A.I.R. 1937 Bom. 155. I hold that on proof that the truck involved in the accident belonged to Respondent No. 2, it was for him to establish the circumstances absolving him of the liability. As no evidence was led by the owner, so much so that he himself even did not appear in the witness box, there is no option but to hold that the truck at the relevant time was driven by someone either in his employment or with his express or implied consent which necessarily makes him liable for damages for the injuries caused to the claimant by its rash and negligent driving.