D.M. Dharmadhikari, J. -- 1. This is an appeal by the owner of the Motor Vehicle and the Insurance Company against the award of the Claims Tribunal, Raisen, dated 10.9.84 in favour of the respondents Nos. 1 to 5, who arc dependents of deceased Hariram, who died on 6.9.1974. The only admitted facts arc that on 6.9.1974 at the place of occurrence of the accident the deceased Hariram was found dead with his bicycle lying near his body and truck No. MPC-3501 was lying in a dashed condition against the road-side tree.

2. The only evidence regarding the accident is of Harlal (A W -2), who stated that the deceased was working as labourer with the same contractor with whom he was working and had received the news of accident. On receiving the news of the accident he rushed to the spot and found deceased Hariram lying dead with a fractured leg and the truck lying nearby in a dashed condition against a wad-side tree. The Claims Tribunal allowed the claim of the dependents of Hariram and taking into consideration his age about 40 years and daily earning at the rate of Rs. 10/- awarded a total compensation in the sum of Rs. 18,000/-.

3. In this appeal at the instance of the owner of the vehicle and the Insurance Company the first submission of the learned counsel appearing for them was that there was no evidence that the accident took place because of any negligence on the part of the driver of the truck. The counsel for the appellants invited my attention to the order sheet of the Claims Tribunal dated 10.9.1984 to show that a request was made for permitting additional evidence in the case by summoning the driver of the ill-fated truck but the Tribunal refused that request on the ground that several opportunities for the purpose were granted in the past and the case was pending since 1974. Learned counsel for the appellants argued that the truck driver was not allowed to be put in the witness box and, therefore, there was nothing on record to prove that there was any negligence on the part of the owner of the vehicle so as to sustain the claim. The counsel for the respondents in reply argued that since the driver was a party to the case and choose to remain absent, the principle of res ipsa loquitur can appropriately be applied to the facts of the case. Reliance is placed on behalf of the claimants/respondents on Pushpa Bai v. M/s. Ranjit Ginning and Pressing Co. Pvt. Ltd AIR 1977 SC 1735.

4. On the first submission made by the counsel for the appellants, in my opinion, the contention in reply of the learned counsel for the respondents/claimants is well founded. The driver of the vehicle having remained ex-parte and having not been examined in evidence, the principle of res ipsa loquitur can be applied on the basis of the aforesaid decision in Pushpa Bai's case (supra) in which the maxim is applied and the law is stated as under:-

"Normally it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitoris that the accident "speaks for itself' or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence.

Where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part".

5. In the instant case Harlal (AW-2) has given description of the acc