Deepak Gupta, J.
1. This appeal by the State is directed against the award of the Motor Accidents Claims Tribunal-I, Sir-mour District at Nahan in M.A.C. Petition No. 54-N/2 of 1994/1993, decided on 9.8.1995.
2. The facts which are not in dispute are that deceased Bachna Ram was employed as a driver with the I.P.H. Department of the State of H.P. He was deployed on duty with truck No. HPN 553. On 13.8.1992 he was carrying a large number of RCC pipes in the truck along with some labourers. The truck met with an accident and went off the road. The deceased died as a result of injuries sustained by him in the accident.
3. The claimants who are the widow and children of the deceased filed a claim petition under Section 166 of the Motor Vehicles Act claiming that compensation should be awarded to them. It was alleged that the accident had occurred due to the sudden puncture of the rear left side tyre of the truck. It was further alleged that the tyre got punctured due to the fact that the vehicle was not being maintained properly.
4. The State in its reply took up the plea that the vehicle was being maintained properly. It was alleged that the vehicle had been got inspected from the Motor Vehicle Inspector on 17.6.1992. Bachna Ram took over this truck on 17.7.1992 and one new tyre and three retreaded tyres were issued to him. It was also alleged that the accident had occurred due to rash and negligent driving of Bachna Ram deceased. According to the respondents on the right side of the road, there was slip of the hillside and resultantly there was debris on the road. The deceased had taken the truck to the extreme left side and he was driving at a high speed. The kacha danga below the left tyre of the truck gave way and as such the accident occurred.
5. On the pleadings of the parties, the Tribunal framed the following issues:
(1) Whether Bachna Ram had died on 13.8.1992 while he was driving truck No. HPN 553 on account of the defect in the tyres of the truck, if so, its effect? OPP
(2) If issue No. 1 is proved in affirmative, to what amount of compensation and from whom the petitioners are entitled to? OPP
(3) Whether accident took place on account of the negligent driving of the deceased Bachna Ram as alleged, if so, its effect? OPR
(4) Relief.
6. The Tribunal came to the conclusion that the accident occurred due to puncture of the tyre and also came to the conclusion that the appellant had not properly maintained the vehicle and the defective tyre had not been replaced. On account of this negligence on the part of the owner the accident occurred. The compensation of Rs. 3,20,500 was awarded in favour of the claimants.
7. Mr. J.S. Guleria, learned Law Officer appearing on behalf of the State, has submitted that the award of Tribunal is liable to be set aside. According to him the claimants had failed to prove any negligence on the part of the State of H.P. in maintaining the vehicle. He further submits that the driver had never made any complaint with regard to the condition of the vehicle. He himself had taken the vehicle voluntarily in whatever condition it was given to him without any demur. He further submits that the vehicle had been inspected on 17.6.1992 and, therefore, the allegation that the vehicle was not being maintained properly is not borne out from the record. He has also relied upon Oriental Insurance Co. Ltd. v. Pandurangan : AIR1997Mad195 and Oriental Insurance Co. Ltd. v. Kaliya Pillai : (2003)ILLJ536Mad . In my opinion the judgments may not be strictly applicable to the facts of the present case. What has been held in these cases is that no amount can be awarded to a tort-feasor. In case driver himself is negligent then obviously nothing can be awarded.
8. On the other hand, Ms. Devyani Sharma, learned Counsel for the respondents, submitted that the accident had arisen out of the use of the motor vehicle. She submits that as per the evidence it stands proved that the accident had occurred due to negligence of the State inasmuch as the vehicle was fitted with defective tyres. She contends that because of the tyre bursting, the load of the vehicle shifted to the left side causing the truck to roll down into the khud. She has cited a number of authorities including Calcutta State Trans. Corporation v. Kamal Prakash De 1976 ACJ 58 (Calcutta); Mela Ram v. Mohan Singh 1978 ACJ 381 (P&H;); Nek Ram v. Punjab Roadways 1984 ACJ 396 (P&H;); Om Parkash Sekhri v. Pritam Singh 1984 ACJ 435 (P&H;); State of Madhya Pradesh v. Kishori Paragniha : AIR1998MP109 ; Pyar Chand v. Himachal Pradesh Road Trans. Corporation . All these cases relate to bursting of a tyre. She has also cited Haryana State v. Krishan Kumar , in which the accident occurred due to breaking of the leaf spring (kamani) of the truck.
9. In all the aforementioned cases the claims were filed by third parties and not by the driver. Furthermore, the defence of the driver and owner in all these cases was that the accident had occurred due to the mechanical defect. It was in such circumstances that it was held and rightly so, that it was for the owner to prove the fact that the vehicle was being maintained properly. It is well settled law that any party who takes up the defence that accident occurred due to mechanical defect must prove that the defect was a latent defect which could not be discovered despite due diligence. In my opinion none of these authorities is applicable because in the present case the defence of the State is not that accident occurred due to mechanical defect. The defence is that the accident occurred due to negligence of the driver of the vehicle and not because of any fault of the vehicle.
10. Two authorities which can be said to be relevant are Oriental Fire & Genl. Ins. Co. Ltd. v. P.P. Misri . In this case a vehicle overturned resulting in death of driver. It was not denied in the said case that the lorry had capsized due to mechanical failure. In this case the Division Bench of Kerala High Court held that even the heirs of the driver can file a claim for compensation under Section 166 of the Motor Vehicles Act in a case where it is alleged that the accident had occurred due to negligence on the part of the owner. After considering the various case-laws including the judgment of Rylands v. Fletcher (1868) LR 3 HL 330, the judgments of the Supreme Court in Minu B. Mehta v. Balkrishna Ramchandra Nayan 1977 ACJ 118 (SC) and Gujarat State Road Trans. Corporation v. Ramanbhai Prabhatbhai 1987 ACJ 561 (SC), it was held as follows:
(51) It is significant to note that even though the Supreme Court has not accepted the novel approach made by the Division Bench of the Bombay High Court, the Supreme Court has made it very clear that the owner has got a liability and that it arises out of his failure to discharge a duty cast on him by law, It is possible to put the case now at hand under the principle that the owner has failed to discharge a duty cast on him by law insofar as he has entrusted a vehicle with mechanical defects to a driver for a hazardous journey in a precarious track over which the lorry has to be driven. There is ample evidence in this case that the accident occurred on account of mechanical failure. There is a clear finding that the accident happened not due to rashness and negligence of the driver. He happened to be an innocent victim.
xxx xxx xxx(52) ...This is also an aspect to be considered in determining the question whether all the ingredients to fasten the liability in a tortious act are necessary for attracting the liability to pay compensation by an owner to his workman who happened to be a victim of a motor accident, without his negligence. When the option is given to an injured work-man or to the legal representatives of the deceased workman to claim a just compensation under Section 110-B of the Act, it is possible to say that the question of negligence is not there, unless and until it creates a defence to the owner to escape the liability. We are of opinion that accepting that part of the principle laid down by the Supreme Court in Minu B. Mehta v. Balkrishna Ramchandra Nayan 1977 ACJ 118 (SC), the owner is liable to compensate the driver on the principle that he has failed to discharge a duty cast on him by law and also on the principle that the owner is liable to the legal representatives of a deceased workman, if the workman dies in the course of employment, nor on account of his negligence.
11. The court held that the evidence showed that the accident had occurred on account of bad condition of the vehicle and not on account of negligence of the driver.
12. The second authority which is relevant is Ramji Porte v. Premabai Patel : AIR1998MP257 . In this case a 15 years old truck was being driven by the driver. It also stood proved on record that driver had been complaining about the condition of the vehicle. The court held that it has been proved that due to the fact that truck was heavily loaded and condition of the truck was not roadworthy, the tyre got punctured and thereafter arm bolt was broken as a result of which the driver lost control of the vehicle. The court held as follows:
(5) From the evidence it is established that the accident occurred due to breakage of arm bolt. When the accident occurred due to mechanical defect the owner of the vehicle 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 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 man of reasonable care. The burden of proving that the accident was due to mechanical defect is on the owner and it is his duty that he had taken all reasonable care like a prudent man and despite such care the defect remained hidden and, therefore, the accident was inevitable so as to absolve him from the liability. [See: Minu B. Mehta v. Balkrishna Ramchandra Nayan 1977 ACJ 118 (SC); Baby v. Sona Khan and a recent decision of this Court in State of Madhya Pradesh v. Kishori Paragniha : AIR1998MP109 . In view of the settled position of law in case of accident occurring due to mechanical defect and in the absence of any evidence in support of the defence raised by the owner of the vehicle, we are of the view that the accident occurred due to the breakage of the arm bolt as a result of which the deceased lost control of the vehicle which turned turtle.
13. Ms. Devyani Sharma, the learned Counsel for the respondents also places reliance on the judgment of Apex Court in Kaushnuma Begum v. New India Assurance Co. Ltd. : [2001]1SCR8 and submits that applying the rule of strict liability as enunciated in Rylands v. Fletcher (1868) LR 3 HL 330, owner of the truck was liable. However, before considering the impact of this judgment it would be relevant to consider what was stated by the Supreme Court in Minu B. Mehta v. Balkrishna Ramchandra Nayan 1977 ACJ 118 (SC). The Supreme Court specifically considered the question whether compensation could be awarded under the provisions of the Motor Vehicles Act without proof of negligence. It held as follows:
(26) The main contention of Mr. Hattangodi, who supported the view of the High Court that negligence need not be proved is that Chapter VIII of the Act is a consolidating and amending Act relating to motor vehicles.
(28) This plea ignores the basic requirements of the owner's liability and the claimants right to receive compensation. The owner's liability arises out of his failure to discharge a duty cast on him by law. The right to receive compensation can only be against a person whois bound to compensate due to the failure to perform a legal obligation. If a person is not liable legally he is under no duty to compensate anyone else. The Claims Tribunal is a Tribunal constituted by the State Government for expeditious disposal of the motor claims. The general law applicable is only common law and the law of Torts. If under the law a person becomes legally liable then the person suffering the injuries is entitled to be compensated and the Tribunal is authorised to determine the amount of compensation which appears to be just. The plea that the Claims Tribunal is entitled to award compensation which appear to be just when it is satisfied on proof of injury to a third party arising out of the use of vehicle in a public place without proof of negligence if accepted would lead to strange results.
(31) A person is not liable unless he contravenes any of the duties imposed on him by common law or by the statute. In the case of a motor accident the owner is only liable for negligence and on proof of vicarious liability for the acts of his servant. The necessity to provide effective means for compensating the victims in motor accidents should not blind us in determining the state of law as it exists today.
14. This judgment was delivered by a three-Judge Bench. A two-Judge Bench of the Apex Court again considered this point in Gujarat State Road Trans. Corporation v. Ramanbhai Prabhatbhai 1987 ACJ 561 (SC). The question before the court was whether the brother of a person killed in a motor accident can claim compensation under Section 110-A of the Motor Vehicles Act. The Supreme Court considering the earlier judgment in Minu B. Mehta's case 1977 ACJ 118 (SC), thereafter opined that in view of the fast and constantly increasing volume of traffic the motor vehicles may be regarded to some extent as coming within the principle of the liability defined in Rylands v. Fletcher (1868) LR 3 HL 330. Some of the relevant observations of the court are as follows:
(9) When the Fatal Accidents Act, 1855 was enacted there were no motor vehicles on the roads in India. Today, thanks to the modern civilisation, thousands of motor vehicles are put on the road and the largest number of injuries and deaths are taking place on the roads on account of the motor vehicle accidents. In view of the fast and constantly increasing volume of traffic, the motor vehicles upon the roads may be regarded to some extent as coming within the principle of liability defined in Rylands v. Fletcher (1868) LR 3 HL 330. From the point of view of the pedestrian the roads of this country have been rendered by the use of the motor vehicles highly dangerous. 'Hit and run' cases where the drivers of the motor vehicles who have caused the accidents are not known, are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if the principle of social justice should have any meaning at all. In order to meet to some extent the responsibility of the society to the deaths and injuries caused in road accidents there has been a continuous agitation throughout the world to make the liability for damages arising out of motor vehicles accidents as a liability without fault.
15. Thereafter the court considered the provisions of Sections 92-A to 92-E of the Motor Vehicles Act, 1939, which were introduced by way of amendment in the year 1982. The provisions introduced the concept of no fault liability for the first time in India. The court thereafter observed as under:
This part of the Act is clearly a departure from the usual common law principle that a claimant should establish negligence on the part of the owner or the driver of the motor vehicle before claiming any compensation for the death or permanent disablement caused on account of a motor vehicle accident. To that extent the substantive law of the country stands modified.
16. The Supreme Court in Kaushnuma Begum v. New India Assurance Co. Ltd. : [2001]1SCR8 , traced out the history of the rule of strict liability propounded in Rylands v. Fletcher (1868) LR 3 HL 330. It enunciated the scope of the rule and the exceptions thereto in para 13 as follows:
(13) The above rule eventually gained approval in a large number of decisions rendered by the courts in England and abroad. Winfield on Tort has brought out even a Chapter on the 'Rule of Rylands v. Fletcher'. At page 543 of the 15th Edn. of the celebrated work the learned author has pointed out that 'over the years Rylands v. Fletcher 1861-73 All ER 1, has been applied to a remarkable variety of things: fire, gas, explosions, electricity, oil, noxious fumes, colliery spoil, rusty wire from a decayed fence, vibrations, poisonous vegetation...'. He had elaborated seven defences recognised in the common law against action brought on the strength of the rule in Rylands v. Fletcher. They are (1) Consent of the plaintiff, i.e., volenti non fit injuria; (2) Common benefit, i.e., where the source of the danger is maintained for the common benefit of the plaintiff and the defendant, the defendant is not liable for its escape; (3) Act of stranger, i.e., if the escape was caused by the unforeseeable act of a stranger, the rule does not apply; (4) Exercise of statutory authority, i.e., the rule will stand excluded either when the act was done under a statutory duty or when a statute provides otherwise; (5) Act of God or vis major, i.e., circumstances which no human foresight can provide against and of which human prudence is not bound to recognise the possibility; (6) Default of the plaintiff, i.e., if the damage is caused solely by the act or default of the plaintiff himself, the rule will not apply; (7) Remoteness of consequences, i.e., the rule cannot be applied ad infinitum, because even according to the formulation of the rule made by Blackburn, J., the defendant is answerable only for all the damage which is the natural consequence of its escape.
17. Thereafter the Supreme Court differentiated between no fault liability and strict liability and held as follows:
(19) 'No fault liability' envisaged in Section 140 of the M.V. Act is distinguishable from the rule of strict liability. In the former the compensation amount is fixed and is payable even if any one of the exceptions to the rule can be applied. It is a statutory liability created without which the claimant should not get any amount under that count. Compensation on account of accident arising from the use of motor vehicles can be claimed under the common law even without the aid of a statute. The provisions of the M.V. Act permit that compensation paid under 'no fault liability' can be deducted from the final amount awarded by the Tribunal. Therefore, these two are resting on two different premises. We are, therefore, of the opinion that even apart from Section 140 of the M.V. Act, a victim in an accident which occurred while using a motor vehicle, is entitled to get compensation from a Tribunal unless any one of the exceptions would apply. The Tribunal and the High Court have, therefore, gone into error in divesting the claimants of the compensation payable to them.
18. The judgments of the Apex Court in Kaushnuma Begum's case : [2001]1SCR8 and Gujarat State Road Trans. Corporation v. Ramanbhai Prabhatbhai 1987 ACJ 561 (SC), have been considered by this Court in Sukhwant Kaur v. Sher Singh 2005 (1) SLJ 600. In this case, it was held as under:
(5) Whether the claim petition was filed under Section 166 or Section 163-A of the Act, it has to be held as being not maintainable since the accident in question occurred not because of the vehicle being driven by some third party, but because the vehicle was being driven by none else than the very person for whose death the claim was being asked for. In Kaushnuma Begum v. New India Assurance Co. Ltd. (supra), their Lordships while dealing with the principle of strict liability propounded in Rylands v. Fletcher (1868) LR 3 HL 330, did not at all, anywhere in the judgment suggest that, rashness or negligence, or no rashness or no negligence, the claim petition would still be maintainable even if the vehicle was being driven by the very person for whose death the action for claim was being initiated by his legal representatives.
(8) The origin and the genesis of the right to file a claim petition for claiming compensation with respect to the loss suffered in a motor vehicle accident is under the law of Tort. Whether we apply the principle of Rylands v. Fletcher or any other principle, the claim has to be on the basis of an act done by a person other than the one for whose death the claim is being lodged. The claim cannot be linked with the death of the person who himself was responsible for causing the accident and consequently his own death.
19. The observations of the court which were made in the context of Section 163-A of the Motor Vehicles Act apply with even greater vigour to a claim under Section 166 of the Motor Vehicles Act.
20. On basis of the various judgments, it is submitted by Ms. Devyani Sharma, learned Counsel for the respondents, that the liability of the owner is absolute even if it is not proved that the owner has been negligent. She also submits that in view of the judgment of the Apex Court in Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343 (SC), it was for respondent State to have proved its case and principles of res ipsa loquitur are applicable. She has relied upon the following observations of the Apex Court:
(6) The normal rule is that 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 of 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 accidents speaks for itself so that it is sufficient for the plaintiff to prove the accidents and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence...
21. It is in the light of the above law that the evidence in the present case is being examined. The mainstay of the case of the claimant is the statement of Dharam Chand, PW 3, motor mechanic of HP PWD. He states that he has inspected the vehicle and has given mechanical report which is Exh. PW 3/A. In Exh. PW 3/A he states that after visiting the spot, according to his opinion, the rear left tyre of the vehicle got punctured and the weight shifted to the left side and immediately at the same time the retaining wall of the road gave way and as a result thereof the vehicle rolled down about 450 ft into the ravine. In the cross-examination he has admitted the fact that if the rear tyre of the vehicle had got punctured, then the other tyre would have held the weight of the vehicle and vehicle could not have overturned. He also admitted that the retaining wall to the extent of 25-30 ft had given way at the time of the accident. He also could not state whether the tyre had got punctured after the accident or prior to it.
22. The only other person who gave evidence with regard to the accident is Jabbar Singh, PW 6. He was travelling in the truck at the time when the accident took place. According to him he heard the noise of a tyre bursting and then the retaining wall of the road gave way. He has admitted that the road at the site of the accident was about 20 ft wide. The hillside had slipped on the right side of the road for about 30 ft. He also admits that the vehicle could not have been taken over the debris of the slip. He has denied the suggestion that the vehicle was being taken on the kacha portion of the road. He states that the rear tyre of the vehicle had gone over the kacha portion and the kacha retaining wall as a result thereof gave way since the truck was loaded with iron pipes. He has admitted the fact that he had lodged an F.I.R., but he has stated that the F.I.R. had not been correctly recorded. According to him he had not stated to the police that the accident had occurred due to rash and negligent driving of the truck driver which is recorded in the F.I.R. The respondents had filed certain documents along with the reply, but have not proved them on record. However, what has been proved on record is that one new tyre was purchased by them from Paonta Tehsil Co-operative Society. The charge list of the vehicle has also been proved on record. The documents which were not proved on record cannot be taken into consideration.
23. The initial burden is always on the claimants to prove the negligence. In case they discharge the initial burden, the onus may shift. However, in the present case, in my opinion, the claimants have failed to discharge the initial burden itself. It cannot be said that the accident occurred only because of the puncture of the tyre. A tyre puncture normally will not cause any vehicle to overturn. The position may be different if the vehicle is moving on a high speed and tyre bursts. Jabbar Singh stated that tyre had burst, but this was not the case set-up in the claim petition. Even Jabbar Singh is not certain about the tyre bursting. He only states that he heard a noise like a tyre burst and thereafter retaining wall gave way. A retaining wall will not collapse due to bursting of a tyre. In my opinion, the claimants have failed to prove that the accident had occurred due to tyre bursting. Without proving this, the liability could not be fastened upon the owner of the vehicle.
24. Even assuming that the puncture of the tyre had taken place, then also the question will arise as to whether there was negligence on the part of the owner of the vehicle or not. There is nothing on record to show that the deceased, who was the driver of the vehicle and supposed to be in-charge of the vehicle, had ever complained to any official that the tyres are required to be changed or that the vehicle was not being maintained properly. In view of the decision of the Apex Court in Minu B. Mehta's case 1977 ACJ 118 (SC) and the conflict between it and the judgment given in Kaushnuma Begum's case : [2001]1SCR8 , it is not very clear whether the rule of strict liability as propounded in Rylands v. Fletcher (1868) LR 3 HL 330, is to be applied in every case or not. Even assuming that the rule of strict liability is applicable in the case, there are exceptions to the rule. One of the exceptions is the consent of the plaintiff, i.e., volenti non fit injuria. In this case the driver himself is the deceased. As stated above, there is nothing on record to show that he had ever objected to driving the truck or raised any objection/question with regard to the condition of tyres or the maintenance of the truck. He had consented to drive the truck without any objection. Therefore, the rule of strict liability would not be applicable even in this case. The appeal of the State, therefore, has to be allowed and the claim petition filed by the claimants has to be rejected.
25. The fact, however, remains that the deceased was an employee of the State. He admittedly died while on duty. The liability to pay compensation under the Workmen's Compensation Act is an absolute liability. The claimants may have exercised their option to get the compensation under the Motor Vehicles Act. However, once it is held that the petition was not maintainable under Section 166 of the Motor Vehicles Act, 1988, since the claimants have failed to show that the respondents are negligent, the liability to pay compensation under the Workmen's Compensation Act will not cease. The employer becomes liable to pay the compensation as soon as the injury is caused to a workman. In the present case, the accident had occurred on 13.8.1992. The claim petition was filed on 5.1.1993. No steps were taken by the State to deposit the amount of compensation payable under Workmen's Compensation Act either before the Commissioner, Workmen's Compensation or even to make some offer before the Motor Accidents Claims Tribunal.
26. The rights of the parties to claim compensation get fructified on the date of the accident. This has been held by the Apex Court in Pratap Narain Singh Deo v. Shrinivas Sabata 1976 ACJ 141 (SC) and Kerala State Electricity Board v. Valsala K. 2000 ACJ 5 (SC). This Court had also consistently taken the view in New India Assurance Co. Ltd. v. Sunita Devi and Shashi Kanta v. H.R.T.C. F.A.O. No. 200 of 2005. Therefore, the compensation has to be worked out by taking into consideration the provisions of the Workmen's Compensation Act as they exist on the date of accident.
27. The wages of the deceased being more than Rs. 1,000 per month could have only be taken Rs. 1,000 per month at the time of accident. 40 per cent of the wages had to be multiplied by the relevant factor. The completed years of the deceased were 44 years and, therefore, the relevant multiplier of 175.94 would apply. The compensation thus payable is Rs. 70,216. The claimants are also held entitled to interest at the rate of 6 per cent per annum from 13.9.92, i.e., one month after the accident till 16.9.1995 when the amount was deposited before the Motor Accidents Claims Tribunal. In this case the appellant State which is supposed to be a model employer should have paid the compensation immediately after the accident. Admittedly, it has not been done so, therefore, it is liable to pay the penalty which is assessed at Rs. 35,108.
28. In view of the above discussion, the appeal is allowed in the aforesaid terms with no order as to costs. The award of the Motor Accidents Claims Tribunal is set aside. However, it is held that claimants are entitled to compensation of Rs. 70,216 plus interest at the rate of 6 per cent per annum from 13.9.1992 till 16.9.1995 and the claimants are also held entitled to penalty of Rs. 35,108.