Executive Engineer, M.I. Division, Rayagada, Koraput vs Niranjan Behera

R.K. Patra, J.—The Executive Engineer, Minor Irrigation Division, Rayagada has filed this appeal challenging the judgment of the Second

Motor Accident Claims Tribunal (S.D.), Berhampur awarding compensation of Rs. 60,000/- in favour of the respondent.

The respondent is a Government servant and at the relevant time was an Assistant Engineer working in the Minor Irrigation Sub-Division,

Koraput. His case was that on 6-5-1987 at about 1.30 p.m. while he was returning from Jeypore to Koraput in the Government jeep bearing

registration number ORK 1757, it met with an accident on the way near the R.T.O. office at Koraput while negotiating a turn. Due to the said

accident, he sustained multiple bodily injuries. He was immediately shifted to the headquarters hospital, Koraput and thereafter he was moved to

K. G. Hospital, Visakhapatnam for better treatment After being discharged from the K. G. Hospital, he was also treated as an out-door patient for

about eight months in the headquarters hospital at Koraput. Alleging that the accident took place due to rash and negligent act of the driver of the

offending jeep, he claimed compensation of Rs, 1,00,000/- from the appellant. In the counter the appellant denied the allegations made by the

respondent. While admitting the accident in question, it pleaded in the counter that the accident was not caused due to rash and negligent driving of

the driver but due to the sudden failure of its brake. It was also stated that the respondent being a Government servant was treated at the hospital

at the cost of the Government and he is not entitled to any compensation. The State of Orissa through the Secretary, Irrigation and Power

Department was the second opposite party before the Claims Tribunal, but on the prayer made by the respondent it was deleted from the cause

title.

The respondent examined two witnesses on his behalf including himself as P. W. 1. The driver of the vehicle was examined on behalf of the

appellant. Both sides filed number of documents and on consideration of the evidence, the Claims Tribunal did not accept the version of the

appellant that the accident took place on account of the sudden failure of the brake. It held that the accident took place due to rash and negligent

driving of the driver of the offending vehicle which resulted in severe bodily injuries to the respondent. It further recorded a finding that the two

fingers of the right hand of the respondent were amputated and there was fracture on the little and ring fingers of his right hand and left elbow. He is

not able to move his left hand and right hand upwards like a normal man and due to the accident, he is not able to hear with his left ear. The

Tribunal accordingly awarded a consolidated amount of Rupees 60,000/- as compensation with interest at the rate of 6 per cent per annum from

the date of application dated 12-5-1988.

In this appeal it was contended on behalf of the appellant that there was no rash and negligent driving of the driver of the offending vehicle and

the accident took place due to the failure of the brake and the said defect was latent and not discoverable by use of reasonable care. The counsel

for the respondent on the other hand contended that the accident did not take place due to mechanical defect of the vehicle but purely on account

of the rash and negligent driving of the driver of the offending jeep. In view of the rival submissions, it is therefore necessary to examine the

evidence on record.

The undisputed position which emerges from the evidence on record is that on the date of occurrence the respondent was returning from Kolab

Project, Jeypore to Koraput in the departmental jeep bearing registration number ORK 1757 which met an accident on the way near R.T.O.

Office, Koraput. The respondent sustained bodily injuries. The bone of the contention between the parties is about the way in which the accident

took place i.e. whether it was due to rash and negligent driving of the driver or due to the failure of the brake of the vehicle. P.W. I is the

respondent himself. In his examination-in-chief, he stated that due to rash and negligent driving, the driver could not control the vehicle for which it

met an accident on the way of R.T.O. office, Koraput. According to him, the vehicle capsized and, he sustained bodily injuries. It was brought out

in his cross-examination that the offendingjeep was at his disposal at the time of the accident and prior to the accident, the jeep was in a running

condition. He also admitted in his cross-examination that immediately before the accident, the driver of the jeep told him that the brakes of the

vehicle were not functioning. R.W. 1 was the driver of the offending vehicle. He stated that on the date of occurrence, he came to Jeypore driving

the jeep which was in good condition. He further stated that while returning from Kolab (Jeypore) he was driving the jeep in a speed of 20 K.ms

per hour and the vehicle was in second gear as it was negotiating down gradient and due to the sudden failure of the brake, the accident occurred.

He testified that he told the passengers of the jeep that the braks were not functioning. He further narrated that to the left side of the road there was

a ditch and in order to save the passengers of the vehicle, he drove it to the right. He denied the suggestion that he was driving the vehicle at the

speed of 50 Kms. per hour. In view of the clear assertion and emphatic denial of oral evidence relating to the cause of the accident, let me examine

the documentary evidence, Ext. ''A'' is the official letter dated 19-3-1988 written by the respondent to the Executive Engineer wherein he had

clearly narrated the way and manner in which the accident took place. He mentioned in the said letter that on the date of occurrence at 7 a.m. he

along with the mate of his sub-division started from Koraput to Jeypore. At Jeypore the repair of the jeep was done and thereafter he proceeded

to Upper Kolab, Head Works Division to hand over a bank draft. After the bank draft was handed over at the Division Office, he was returning

back to Koraput. At about 1.30 p.m. near the Circuit House, Koraput the driver cautioned him that brakes of the vehicle were failing and asked

the passengers to sit cautiously, but within a few seconds the accident occurred, The aforesaid contents of Ext. ''A'' fully corroborates the evidence

of the driver that the accident took place on account of the failure of the brakes, There is no reason as to why the evidence of the driver should not

be accepted when he stated that the vehicle was being driven at a speed of 20 Kms. per hour as he was negotiating down gradient. The Tribunal

relying on the F.I.R. Ext. 2 has come to hold that the plea of the appellant that the accident took place due to the sudden failure of the brakes is not

believable and it concluded that the accident was caused due to the rash and negligent driving of the driver. The F.I.R. is not a substantive piece of

evidence. It was lodged by the Assistant Sub-Inspector of Police who was neither an eye-witness nor a passenger in the jeep. Since accident had

taken place and respondent being one of the passengers had sustained injuries, F.I.R. was lodged under Sections 279/337/338 of I.P.C. Solely on

the basis of the F.I.R. or from the charge-sheet filed against the driver, it cannot be held that the accident was on account of rash and negligent

driving of the driver of the offending jeep. The Tribunal has clearly gone wrong in deciding the points solely basing on the F.I.R. and the charge-

sheet. On the basis of the evidence available, it cannot be said that the vehicle in question was being driven rashly and negligently by the driver --

R.W.I. On the other hand, the evidence clearly establishes that the accident occurred due to the failure of the brakes.

Now the crucial issue which needs decision is whether the owner can be saddled with the liability to pay compensation in the accident due to the

mechanical defect in the vehicle. This point came up for consideration before the Supreme Court in Minu B. Mehta and Another Vs. Balkrishna

Ramchandra Nayan and Another, wherein it has been held that in order to succeed in a defence that the accident was due to a mechanical defect,

the owner has to prove that he had taken all necessary precautions and kept the vehicle in a roadworthy condition and that the defect occurred in

spite of the reasonable care and caution taken by the owner. In order to sustain a plea that the accident was due to the mechanical defect the

owner must raise a plea that the defect was latent and not discoverable by the use of reasonable care. The owner is not liable if the accident is due

to a latent defect which is not discoverable by reasonable care. The burden of proving that the accident was due to a mechanical defect is on the

owner and it is his duty to show that he had taken all reasonable care and that despite such care the defect remained hidden.

In the back-drop of the aforesaid legal pronouncement, let the evidence on record be examined. The driver in his evidence has stated that the jeep

was in good condition. In Ext. ''A'' the respondent himself has mentioned that after the jeep was repaired at Jeypore, he proceeded to upper

Kolab Head Works Division to hand over the bank draft and thereafter while coming back to Koraput, the accident took place. The fact that

before proceeding to Koraput the jeep was repaired and after the repair work was done, it proceeded towards Koraput shows that the vehicle

was in a roadworthy condition and mechanical failure occurred despite reasonable care and caution being taken. The offending jeep was at the

disposal of the respondent at the time of the accident. He himself was travelling in it. Had there been any indication of failure of the brakes, he

would not have opted to travel in it. The very fact that preceding the accident repair work of the jeep was attended at Jeypore shows that the

mechanical defect (failure of the brakes) was latent and was not discoverable by the use of reasonable care.

For the aforesaid reasons I am of the considered opinion that the appellant cannot be held liable to pay compensation due to the accident. In the

case of a motor accident, the owner is liable for negligence and on proof of vicarious liability for the acts of his servant. In absence of proof of

negligence by the driver of the offending jeep and the mechanical defect being latent and being not discoverable by use of reasonable care, the

Tribunal clearly erred in law in saddling the liability to pay compensation on the appellant. The impugned judgment accordingly cannot be sustained

which is hereby set aside. The claim petition filed by the respondent stands rejected.

In the result, the appeal is allowed. There shall be no order as to costs.