THE OWNER OF A MOTOR VEHICLE IS NOT LIABLE TO PAY COMPENSATION IN AN ACCIDENT CAUSED BY A LATENT DEFECT WHICH IS NOT DISCOVERABLE BY REASONABLE CARE.

R. K. PATRA, J.

( 1 ) THE Executive Engineer, Minor Irrigation Division, Rayagada has filed this appeal challenging the judgment of the Second Motor Accident Claims Tribunal (S. D), Berhampur awarding compensation of Rs. 60,000/- in favour of the respondent.

( 2 ) THE respondent is a Government servant and at the relevant time was an Assistant Engineer working in the Minor Irrigation Sub-Division, Koraput. His case was that on 6-5-1987 at about 1. 30 p. m. while he was returning from Jeypore to Koraput in the Government jeep bearing registration number ORK 1757, it met with an accident on the way near the R. T. O. office at Koraput while negotiating a turn. Due to the said accident, he sustained multiple bodily injuries. He was immediately shifted to the headquarters hospital, Koraput and thereafter he was moved to K. G. Hospital, Visakhapatnam for better treatment. After being discharged from the K. G. Hospital, he was also treated as an out-door patient for about eight months in the headquarters hospital at Koraput. Alleging that the accident took place due to rash and negligent act of the driver of the offending jeep, he claimed compensation of Rs. 1,00,000/- from the appellant. In the counter the appellant denied the allegations made by the respondent. While admitting the accident in question, it pleaded in the counter that the accident was not caused due to rash and negligent driving of the driver but due to the sudden failure of its brake. It was also stated that the respondent being a Government servant was treated at the hospital at the cost of the Government and he is not entitled to any compensation. The State of Orissa through the Secretary, Irrigation and Power Department was the second opposite party before the Claims Tribunal, but on the prayer made by the respondent it was deleted from the cause title.

( 3 ) THE respondent examined two witnesses on his behalf including himself as P. W. 1. The driver of the vehicle was examined on behalf of the appellant. Both sides filed number of documents and on consideration of the evidence, the Claims Tribunal did not accept the version of the appellant that the accident took place on account of the sudden failure of the brake. It held that the accident took place due to rash and negligent driving of the driver of the offending vehicle which resulted in severe bodily injuries to the respondent. It further recorded a finding that the two fingers of the right hand of the respondent were amputated and there was fracture on the little and ring fingers of his right hand and left elbow. He is not able to move his left hand and right hand upwards like a normal man and due to the accident, he is not able to hear with his left ear. The Tribunal accordingly awarded a consolidated amount of Rupees 60,000/- as compensation with interest at the rate of 6 per cent per annum from the date of application dated 12-5-1988.

( 4 ) IN this appeal it was contended on behalf of the appellant that there was no rash and negligent driving of the driver of the offending vehicle and the accident took place due to the failure of the brake and the said defect was latent and not discoverable by use of reasonable care. The counsel for the respondent on the other hand contended that the accident did not take place due to mechanical defect of the vehicle but purely on account of the rash and negligent driving of the driver of the offending jeep. In view of the rival submissions, it is therefore necessary to examine the evidence on record. The undisputed position which emerges from the evidence on record is that on the date of occurrence the respondent was returning from Kolab Project, Jeypore to Koraput in the departmental jeep bearing registration number ORK 1757 which met in accident on the way near R. T. O. Office, Koraput. The respondent sustained bodily injuries. The bone of the contention between the parties is about the way in which the accident took place i. e. whether it was due to rash and negl