R.K. Shukla, J.
1. This F.A.F.O. under Section 110-D of the Motor Vehicles Act, 1939 is directed against the award of the Motor Accident Claims Tribunal (hereinafter referred to as Tribunal) dated 30th July, 1977.
2. The accident in question occurred on 13th June 1975 on Kanth-Moradabad road near P. Gandhi Ashram, Moradabad, on account of U.P. Roadways bus No. UPM 8957 having dashed against Jumma, the latter was crushed under the wheel of the bus and died instantaneously. The claim for compensation to the tune of Rs. one lakh was made by both the appellants jointly in the capacity as wife and mother respectively of Jumma deceased contending that the accident occurred due to rash and negligent act of Asha Ram, driver of the bus. The claim was resisted by all the respondents who refuted that the accident took place due to any rashness or negligence on the part of the driver and also pleaded that the amount of compensation claimed by the appellants was highly exorbitant.
3. The driver Asha Ram opposite party No. 4 filed a separate written statement and on behalf of three other opposite parties, a common written statement was filed, in which in addition to denial of negligence on the part of the driver, it was also pleaded that the application for claim had not been properly presented and was not maintainable. The plea of non-joinder and mis-joinder of necessary parties and claim being barred by time was also raised. On the pleadings of the parties, seven issues were framed by the Tribunal.
4. There is no dispute about the fact that Smt. Kallo, appellant No, i is the widow and Smt. Bhullo, appellant No. 2 is the mother of the deceased Jumma. From the statement of Smt. Kallo it appears that the deceased was the only bread carner of the family and both the appellants were dependent on his income there were other source of livelihood, Thus both the appellants are legal representatives of the deceased so both of them are entitled to their claim. Therefore, issues Nos. 2 and 3 were decided in their favour. Preliminary issue No. 5 regarding making respondent No. 1 a party was also decided in favour of the appellants. But the Tribunal held that the claimant-appellants have failed to prove that the accident took place on account of rash and negligent driving of respondent No. 4, consequently this issue as well as other issues were decided against the appellants and claim of both the appellants was dismissed. Hence this appeal.
5. The first issue whether the accident took place on account of rash and negligent driving or due to negligence or rashness of respondent No. 4, requires our utmost consideration. There are two opposing theories before us regarding this accident. According to the claimants, Jumma (aged about 33 years) was coming on a cycle from Kanth side and going towards Moradabad along with three others at about 7 or 7.30 A.M. on the date of the accident. When they arrived near 24th P.A.C. Battalion office before Gandhi Ashram, the chain of the cycle of Jumma went out of order and he started setting right the chain of his cycle sitting on the left side Kachchi Patri of the road. In the mean time the aforesaid U.P. Transport bus came from Kanth side driven rashly and negligently and crushed Jumma. On the other hand, according to the opposite parties, Jumma (deceased) along with two others cyclists was coming from Moradabad side and the bus from the opposite direction. The three cyclists were joaking, and laughing amongst themselves looking at P.A.C. side and did not pay any attention to the horn of the bus and when the bus arrived near them, they became non-plussed and stuck each other and Jumma fell on his right side, and inspite of all efforts of the driver Jumma struck the body of the bus on the right hand side and came below the wheels and died on the spot.
6. In support of their aforesaid theory claimants have produced only Baboo Palledar (P.W. 3) and got proved five photographs, Exs 15 to 19 and their negatives, Exs. 10 to 14 taken by Harsh Bardhan Sharma (photographer, P.W. 2). Baboo (P.W. 3) has not stated a word in his examination-in-Chief about the fast or negligent driving by the driver, opposite party No. 4. Even then when counsel for the respondents asked about the speed of the bus he has stated, 'Mujhe nahin pata ki bus us samay dhimi chal rahi thi ya tej.' He has clearly stated that he was going ahead of Jumma (deceased) and when Sentry of P.A.C. on duty cried then he turned backwards ann saw that Jumma had been crushed by the bus. He is not an eye witness of the circumstances and the manner in which the accident took place. Theory of Jumma sitting on kachchi patri of the road has been completely belied by the aforesaid photographs. It is clear from Ex. 16 that the deceased was nearer to the right hand side of the bus, If the deceased was sitting on the left hand side of the bus going from Kanth to Moradabad on Kachchi Patri and the bus also came from Kanth, then Jumma would have struck the left hand side of the bus but he is seen nearer to right hand side of the bus which highly probabolizes the defence theory. The body of the bus as revealed by these photographs fits in only with the theory described by the respondents and not with the appellants.
7. There is no other evidence to support the manner of accident described on behalf of the appellants. On the other hand the respondents have produced two witnesses namely, Krishna Pal Singh Constable (D.W. 1) and Karam Singh (D.W. 2) who fully support the manner and the circumstances of the accident described by the respondents. The presence of Krishna Pal Singh (D.W. 1) Sentry on duty at the gate of the office of the 24th P.A.C. Battalion at a distance of 10 or 12 paces from the place of the accident, has been admitted by Baboo (P.W. 3) Krishna Pal Singh (D.W. 1) has clearly stated that accident took place at about 8.30 A.M. and he saw the cyclists going side by side carelessly joking with each other. He repramanded them but they paid no heed and continued to ply their cycles in the same careless manner, looking at the Sentry, who was taking round at the quarter guard in the P.A.C, compound. According to this witness the bus came from opposite direction and gave horn 8 or 9 times but the cyclists did not care. The bus driver slowed down the speed of the bus and took the bus to his extreme left on the Kachchi Patri of the road and at that time these cyclists saw the bus, became nervous, jumbled with each other and fell down on the ground. Two cyclists fell on their left side but the third cyclists fell on his right side and came in between the front and back wheels of the bus on driver side. As the speed of the bus was slow, this witness cried out and the driver stopped the bus then and there and the third cyclist came under the wheels. He succumbed to his injuries and died. He has been cross-examined at length but nothing substantial has been brought out which could create any doubt about his veracity and independence. He is absolutely an independent witness and we find no sufficient reason to discard his testimony.
8. The other defence witness. Karam Singh (D.W. 2) who was travelling by the same bus has fully corroborated the statement of Krishna Pal Singh (D.W. 1). The only defect pointed out against him by the learned Counsel for the appellants is that he belongs to the village of the driver, Ashram (respondent No. 4). That is not the sufficient reason, in our view, to discard his statement on oath which finds support from the statement of Krishna Pal Singh (D.W. 1).
9. Under these circumstances relying on a decision of a Division Bench of this Court in the case of Oriental Fire and General Insurance Co. v. Smt. Krishna Devi and Ors. 1982 A.L.J. 43 and on a decision of the Gujarat High Court in the case of Popatlal Parsottamdas Shah v. Gujarat State Road Transport Corporation and Ors. A.I.R. 1982 N.O.C. 53 Gujarat the learned Counsel for the respondents vehemently urged that the appellants have miserably failed to discharge the initial burden of proving rash and negligent driving, therefore, they are not entitled for any compensation.
10. In the Oriental Fire and General Insurance Co.'s case (supra) a Division Bench of this Court, in such circumstances has held as under :
In a case where damages are claimed for the death of the deceased the claimants must prove that the accident occurred on account of rash and negligent driving of the vehicle. This is the basic principle which governs the proceedings before the Tribunal. If claimants failed to lead any evidence regarding rash and negligent driving of the vehicle or if no evidence is produced by the parties on the question, the claim petition would fail. The initial burden lies on the claimants to prove the fact that the vehicle was being driven in a rash and negligent manner resulting into the accident. In absence of any such evidence the owner of the vehicle would not be liable to pay compensation. These principle are well accepted and it is not necessary to refer to authorities.
In Popatlal's case (supra) a Division Bench of the Gujarat High Court has held that at the trial of a claim petition, what the claimant must, no doubt, prove is that the loss for which he claims damages was caused by the defendant's negligent act. The evidence to prove the loss and the negligent act may be direct or curumstantial or both. Such evidence must be tested by the yardstick of probabilities and its intrinsic worth. Further, it is also well to bear in mind two related aspects in its connection. First, there is an essential distinction between 'burden of proof' end 'onus of proof' burden of proof lies upon' the person who has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence.
11. In the case of Minu B. Mehta v. Bal Krishna : [1977]2SCR886 the Supreme Court has clearly held that the liability of the owner of the vehicle to compensate to the victim in a motor accident due to the negligent driving of his servant is based on the Law of Torts and proof of negligence is necessary before the owner or the Insurance Co, could be held to be liable for the payment of compensation in a motor accident claim case.
12. In view of the above discussion, we find that the appellants have failed to discharge their initial burden of proof that this accident took place due to the rash and negligent driving of the driver of the bus. There is no doubt that Ashram Ram driver, respondent No. 4 has not been produced before the Tribunal but the respondents have produced two reliable witnesses to support their contentions that there was no rash driving or negligence on the part of the driver. Ashram respondent No. 4 has also filed a separate written statement wherein he has denied all the allegations of negligence and rash driving which has been proved by two defence witnesses aforesaid. We find no sufficient reason to discard their statements. Under these circumstances non-production of Ashram driver in our opinion does not materially affect the final conclusion drawn by the Tribunal.
13. So far as other points are concerned, there is no dispute that Smt. Kallo, appellant No. 1 is the widow and Smt. Bhullo, appellant No. 2 is the mother of Jumma deceased. Thus both the appellants are legal representatives of the deceased, so both of them are entitled to make their claim. However, issue Nos. 2 and 3 were decided in favour of the appellants by the Tribunal. The Tribunal held that after all necessary deductions, as admissible in law a claim of Rs. 1,00,000/- could not be said to be excessive. But then it would be payable provided there was a finding of rash and negligent act on the part of the driver. Preliminary issue No. 5 regarding making respondent No. 1 a party was also decided in favour of the appellants, The finding of the Tribunal on the aforesaid issue Nos. 2, 3 and 5 have not been challenged before us on behalf of the respondents.
14. Since we have already upheld the findings of the Tribunal that the appellants have failed to prove that the accident took place on account of rash and negligent driving of respondent No. 4 consequently the appellants are not entitled to any compensation.
15. In the end the learned Counsel for the appellants urged to consider the claim of the appellants humanitarian grounds. We examined the record of the case with utmost care but we find nothing to assist the appellants. In the absence of proof of rash and negligent driving, compensation cannot be awarded. Therefore, we have no opinion but to reject this argument also.
16. It is regrettable that precious human life has been lost and that of the bread-winner of the family, but lack of cogent evidence in this case, absolves the respondents from the liability. Unfortunate, as it is, but then the legal position is clear. Unless rash and negligent driving is established there would be no award of compensation.
17. The doctrine of Res Ipsa Loquitur is also not attracted in this case as parties led evidence to establish their theory of accident. On the other hand the respondents have successfully proved by the evidence of two witnesses that there was no rash or negligent driving on the part of the respondent No. 4, the driver of the bus. Thus the appellants are not entitled to any compensation.
18. Having examined the record of the case carefully, we are satisfied that the appeal has no merits and it must fail.
19. For the reasons indicated above, we find no force in this appeal, which is accordingly dismissed. However, there will be no order as to costs.