HARI LAL AGRAWAL, J.

1. This is an appeal under S.110-D of the Motor Vehicles Act by the owners of a private Ambassador Car No. WBF 7613, against the judgment and order of the District Judge, Bhagalpur, awarding a sum of Rs. 20,000.00 as compensation to the respondents for the accident which took place on 20-6-1970 at about 4 p.m. by their car on Anand Chikitsalaya Road in the town of Bhagalpur in front of the house of one Mahabir Prasad.

2. With respect to the facts, there was a small controversy between the parties. Whereas according to the case of the claimants, the accident took place while appellant No. 2 was driving the car, according to the defence case the car was standing in front of the house of the appellants and the driver was cleaning it. The driver, however, went to take tea leaving the key in the car by mistake and in the meantime some unknown boy, of the locality started the car which caused severe injuries to Ramratan Singh (38 years) who succumbed to his injuries on way to the hospital.

3. In the application for compensation filed by the widow of the deceased and his minor children a sum of Rs. 40,000.00 was claimed as compensation.

4. Two witnesses were examined on behalf of the claimants and seven on behalf at the appellants. It is not necessary to advert to their evidence on the record as the learned counsel for both the parties did not challenge the findings recorded by the learned District Judge. He accepted the case of the appellants regarding the manner of occurrence, namely, that the car was started by some unknown person unnoticed by anybody and in course of the movement of the car it knocked the deceased against a wall resulting in his death as already said earlier.

5. By applying the rule of res ipsa loquitur the learned Judge has rightly put the burden of proof on the appellants. The doctrine of res ipsa loquitur is well known in law, which is an exception to the normal rule that it is for the plaintiff to prove negligence and not for the defendant to disprove it. Exception applies where the circumstances surrounding the thing which causes the damage are, at the material time, exclusively under the control and management of the defendant on his servant and the happening is such as does not occur in ordinary course of things without negligence on defendants part. In other words, where the facts and circumstances make out a clear case of negligence it is for the defence to prove otherwise. Salmond in his Law of Torts says that this doctrine applies whenever it is so improbable that such an accident would not have happened without the negligence of the defendant. Halsburys Laws of England explains this principle in the following terms :

"Where the doctrine applies, presumption of fault is raised against the defendant which, if he has to succeed in his defence, must be overcome by contrary evidence, the burden of the defendant being to show how the act complained of could reasonably happen without negligence on his part."

In essence the doctrine of res ipsa loquitur is a rule of evidence effecting the burden of woof, and, therefore, the learned counsel for the appellants rightly did not advance any argument to avoid the liability for the accident.

The trial Court taking into account the earning capacity of the deceased, namely, Rs. 350.00 per month, has awarded a sum of Rs. 20,000.00 as compensation against appellant No. 1. It, however, exonerated the Insurance Company on the ground that its liability could arise only in case where the car was driven by a licensed driver and inasmuch as according to the very defence version, the car was driven by someone else, the insurer was not liable. The amount of compensation also has not been challenged and, therefore, we are not bothered on this question, particularly when there is no fixed rule for calculating the quantum of compensation and the learned Judge has estimated by balancing the pecuniary loss to the claimants on the death of the earning mem