MAYA LAMINI Vs. NAWAL THAKUR

JUDGEMENT

(1.) BY this judgment two appeals being F.A.O. Nos. 232 and 235 of 2000 are being disposed of as they arise out of the same accident and similar awards. The facts necessary for disposal of the present case are that Maya Lamini and others claiming themselves to be the widow and children of deceased Sonam Lama filed a petition under Section 166 of the Motor Vehicles Act, 1988. In this petition it was alleged that deceased Sonam Lama had hired a tractor No. HP-43-0888 for carriage of stones from Thirot to Udaypur. It was further alleged that about 8.30 a.m. when the tractor reached Bhimu Bridge the deceased got down from the tractor to answer the call of nature. In the meantime the driver of the tractor started the tractor in an excessive speed and the tractor overturned on the deceased and one other person and the tractor as well as these two persons fell into the river Chanderbhaga. Similarly in the other case Parmol, widow and the children of deceased Vijay Ram filed a claim petition wherein similar facts were stated. In both the cases it was alleged that the deceased were working as stone masons.

(2.) THE owner filed similar replies in both the cases. The accident was not denied. The defence taken was that the accident had taken place due to the sudden mechanical defect i.e. steering of the tractor got jammed and in order to avoid the accident the driver applied the brakes but the brakes failed and as such the accident could not be avoided. It was stated that two persons who were walking on the road came below the tractor and fell into the river along with the tractor.

(3.) THE first common issue to be decided in both the cases is with regard to the negligence. The accident is not denied. The defence taken by the owner and driver is that the accident occurred due to the mechanical defect. They have not led any evidence with regard to the tractor having developed any mechanical defect. In fact the tractor got washed away, so obviously it could not be subjected to any mechanical inspection. It is well settled law that when any party raises a defence that an accident occurred due to sudden mechanical defect then the party must not only prove that the accident had occurred due to mechanical defect but must also prove that such defect was a latent defect and could not be discovered despite due diligence. No evidence has been led by the owner or driver to show whether the tractor was being maintained properly. There is nothing on record to show that the accident occurred due to a latent defect which could not be discovered despite proper maintenance. On the other hand the claimants have examined Kishan Kumar who is an eye-witness. According to him both the deceased i.e. Sonam Lama and Vijay Ram were walking on the side of the road. The tractor No. HP-43-0888 driven by respondent Daljit Singh came from behind at a high speed. It overturned on both the deceased as a result of which deceased as well as tractor fell into the river Chanderbhaga. This witness has also clearly stated that the claimants are the legal representatives of the deceased. He has not been cross-examined with regard to the manner of the accident or with regard to the relationship of the claimants with the deceased. Thus, from the above evidence it can reasonably be held that the deceased died due to the rash and negligent driving of the driver of the tractor.