The main legal point established in the judgment is the application of the doctrine of res ipsa loquitur and the burden of proof in cases of motor accidents, as well as the insufficiency of evidence in discharging the burden of showing that the accident was not due to negligence.

N. S. RAMASWAMI, J. :- The claimants in O. P. 601 of 1969, on the file of the Motor Accidents Claims Tribunal, Madras, are the appellants before us. One Kapali Nattar was injured in a motor accident that occurred on 22-7-1969 in Triplicane High Road, as a result of which he died within a few hours thereafter. The motor vehicle involved in the accident is the State Transport Bus bearing registration No. MSV 266. The three claimants are respectively the widow, the minor son and the mother of Kapali Nattar, the deceased. They claimed a total compensation of Rs. 75,000 payable to them in respect of the death of Kapali Nattar. According to them, the motor accident which resulted in the death of Kapali Nattar was due to rash and negligent driving of the abovesaid motor vehicle. The respondent to the claim petition is the State of Tamil Nadu, represented by the Director of Tamil Nadu State Transport Department as the owner of the vehicle.

2. The tribunal below determined the total compensation payable to the claimants as Rs. 53,295, but dismissed the petition accepting the plea of the respondent that the accident was an inevitable one and that there was neither rashness nor negligence bringing about the accident.

3. The admitted facts are these : The deceased (Kapali Nattar) was proceeding on a cycle from north towards south on the extreme east of Triplicane High Road. The bus (MSV 266) admittedly driven by an employee of the respondent was also proceeding in the same direction in the said road. Due to sudden failure of brake, the bus went out of control, ran over the pavement on the eastern side of the road, hit against one Balakrishnan (who has given evidence as P.W. 5), then hit the cycle which the deceased was riding on its rear, as a result of which the deceased was thrown down and the bus ran over him. The bus travelled further to a distance of 390 feet after which it was brought to a stop by persons on the road throwing stone boulders and other obstacles in front of the vehicle. The deceased had sustained extensive fractures of bones in the pelvic region due to the bus actually running over him, apart from severe injuries to the head. The man died in the hospital within 3 hours of the accident.

4. The case of the respondent which has been accepted by the Tribunal below is that as the accident was a result of sudden failure of brake, it was an inevitable one and not due to any rashness or negligence on the part of the driver of the vehicle.

5. The question for consideration is whether the above finding of the Tribunal below is correct.

6. In a case of claim for damages on the ground that the respondent, either directly or vicariously, is guilty of a tortious act, the burden of proof that the respondent or his servant committed the tort is upon the claimant. In the case of a motor accident it has to be shown by the claimant that the accident was due to either rashness or negligence. Such rashness or negligence need not necessarily be by the person who actually drives the vehicle at the time of the accident. In cases of alleged negligence, if the doctrine of res ipsa loquitur applies, there would be a presumption of negligence which presumption has to be rebutted by the respondent.

7. In the present case, undoubtedly the maxim res ipsa loquitur applies. It is the admitted case that the bus hit against the cycle on its rear when the deceased was riding it on the extreme eastern side of the road. The cyclist was going on his proper side as he was using the road close to the eastern pedestrian pavement. He was keeping to his extreme left. The bus ran off its track, jumped over the pedestrian pavement and after hitting a person who was standing on the pedestrian pavement hit the cycle from behind. These facts prima facie indicate that the accident was due to negligence. It is not disputed that under the circumstances of the present case the maxim res ipsa loquitur applies. The controversy is as to whether the respondent has discha