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Last Updated On : 22-11-2018

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JKJ 2008 (1) J-3

Burden of Proof And The DOCTRINE of RES IPSA LOQUITUR

BANSI LAL BHAT (Presiding Officer, MACT (District & Sessions Judge), Jammu)

Liability for payment of compensation arises where an accident occurs resulting in causing of injuries or death to a third party. Apart from the liability of driver the owner of offending vehicle is vicariously liable for the acts of erring driver on the principle of Master’s liability for the act of his servant committed during the course of his employment. The insurer is liable to indemnify the insured to the extent of compensation payable by the insured to claimants. However such liability is regulated by the contract of insurance and provisions of Motor Vehicles Act. Such liability arises where the accident, fatal or non fatal, occurs due to rash and negligent driving on the part of driver. It is settled law of the land that proof of rashness and negligence on the part of driver of offending vehicle is a sine qua non for maintaining a claim petition u/s 166 of M.V.Act. The claimant attributing rash and negligent driving to the driver of the offending vehicle has to prove that the death or injury resulting in disablement was due to wrongful act, fault or neglect of the driver. The burden of proof invariably rests upon the claimant who alleges malfeasance, misfeasance or nonfeasance against the driver. However in certain cases hardship is encountered by the petitioner in adducing proof of rashness and negligence on the part of erring driver for a variety of reasons. In certain cases deceased may have been the only witness of accident or facts may be within the exclusive knowledge of respondent. The Doctrine of Res Ipsa Loquitur is applied in such cases to mitigate the hardship faced by the claimant which renders it permissible to raise inference that the accident occurred owing to rash and negligent driving on the part of driver.

The dictum of Hon’ble Apex Court in Pushpabai Parshottam Udeshi & Ors. Vs. Ranjit Ginning and Pressing company and anr., AIR 1977 SC 1735 is loud and clear. In this land mark judgment Hon’ble Apex Court dwelt upon the broad features of the Doctrine of the Res Ipsa Loquitur and indicated the appropriate cases where this Doctrine could be invoked. The legal position emerging from the judicial precedent is briefly summarized as under:-

In exceptional cases plaintiff may be lacking knowledge as regards the true cause of the accident which may be within exclusive knowledge of defendant. Plaintiff may be able to prove the accident but unable to prove how it happened. In such eventuality application of principle Res Ipsa Loquitur will be justified. In general terms the Maxim Res Ipsa Loquitur means that the accident “speaks for itself” or tells its own story. This Maxim is applied to cases where the accident speaks for itself. In this case a Car dashed against a tree four feet away from the extreme right hand side of the metal road with the tree up rooted from the soil and the Car got badly damaged. The impact of the accident was so horrible that the steering wheel and engine of Car receded back pressing down the 3 occupants who died. In the circumstances the maxim “Res Ipsa Loquitur” was held to be applicable. It was for the Respondents to prove the plea of “Inevitable accident”.

Where the accident speaks for itself, plaintiff is required to prove the accident only. The onus shifts to defendant to prove that the accident did not occur owing to rash and negligent driving of driver.

The maxim “Res Ipsa Loquitur” thus carves out an exception to general rule engrafted in section 110 of Evidence Act which lays down the broader principle that the burden of proving a fact rests on the party who asserts the affirmative of the issue. However in its application to criminal trails the Hon’ble Apex Court held in Mohd. Aynuddin v. State of AP AIR 2000 SC 2511 that the said maxim has application only when the nature and peculiar circumstances of the accident induce the belief that the accident would not have occurred but for negligence and the vehicle involved in accident was under control and management of erring driver.

With the blessings of “Hazur Maharaj Divine Sadguru Sant Rasila Ram Ji in the presence of Sadguru Sant Subhash Chander Singh Ji Maharaj of Dera Baba Teja Singh Ji of Saidpur (Pb.)”         ||