Point of Law: Burden of proving that accident was due to a mechanical defect is on owners and it is their duty to show that they had taken all reasonable care and that despite such care defect remained hidden.

JUDGMENT :

HANCHATE SANJEEVKUMAR, J.

1. The present appeal is filed by the appellant-Insurance Company challenging the judgment and award dated 27.04.2015 in MVC No. 364/2010 passed by I Addl. Senior Civil Judge and MACT-V, Davanagere, questioning the liability and also for seeking reduction of quantum of compensation.

2. Brief facts of the case are that, on 12.01.2010 deceased-Dadapeer was travelling in Tata Safari bearing No. KA-34/M-5439 from Shimoga to Davanagere. At about 3.30 p.m. when the said vehicle was proceeding on Honnali Road near lake Bedara Hosahalli, at that time, respondent No. 1 being the driver of Tata Safari drove the same in a rash and negligent manner and dashed against the road side tree and thereby caused the accident. In the said accident, the deceased Dadapeer sustained grievous injuries to the vital parts of the body and died at the spot.

3. Heard the arguments from both sides and perused the records.

4. Learned counsel for the appellant-Insurance Company submitted that the accident was occurred on 12.01.2010, but not by rash and negligent driving by the driver of Tata Safari vehicle, but due to mechanical defect as revealed in Ex.P4-IMV report. It is submitted that respondent No. 8-owner of Tata Safari knew the fact that the vehicle was having defect, in spite of it, the owner did not rectify/remove the defects in the vehicle resulting into occurrence of accident. Therefore, the Insurance Company is not liable to pay the compensation, but the owner is liable pay the compensation to the claimants. Therefore, it is sum and substance of argument of the learned counsel for the appellant-Insurance Company that respondent No. 8/owner knew that the vehicle was having mechanical defect of gear box and steering and in spite of having knowledge that the vehicle is having mechanical defect allowed the driver to drive the vehicle. Hence, the owner of Tata Safari is liable to pay compensation, but not the Insurance Company.

5. Learned counsel for the appellant-Insurance Company placed reliance on Ex.P4-IMV report, in which, the observation made by the Motor Vehicle Inspector is that “at times” is mentioned, which means that previous to the date of the accident, there was mechanical defect occurred, but did not attend the same. Therefore, this word denotes that the owner was having the knowledge regarding the mechanical defect, but did not carry out the repair and allowed the driver to drive the vehicle and thus, resulted into occurrence of accident. Therefore, submitted that the owner is liable to pay the compensation to the claimants, but not the Insurance Company. Therefore, prays to allow the appeal by fastening the liability on respondent No. 8/owner of Tata Safari.

6. On the other hand, learned counsel for respondent Nos. 7 and 8/driver and owner of Tata safari submitted that the owner did not know that there was mechanical defects in the vehicle, but the defects was first time occurred at the time of the accident, since the steering of the vehicle did not respond to the gear box. Therefore, submitted that the owner did not know that there was mechanical defect in the vehicle. Hence, the Insurance Company is liable to pay the compensation to the claimants.

7. Learned counsel for respondent Nos. 1 to 6/claimants has endorsed the argument canvassed by the learned counsel for respondent No. 8/owner.

8. The learned counsel for the appellant-Insurance Company placed reliance on the judgment of the Hon’ble Supreme Court in the case of Minu B. Mehta and Another vs. Balkrishna Ramachandra Nayan and Another, AIR 1977 SC 1248. Therefore, it is the contention urged by the learned counsel for the appellant-Insurance Company that if the owner knew that there is mechanical defect in the vehicle and in spite of that allowing the vehicle to run, then amounts to negligence on the part of the owner and the owner is liable to pay the compensation. This is the ratio laid down in the above stated judgment.

9. The Hon’ble Supreme Court in