THE DOCTRINE OF RES IPSA LOQUITUR APPLIES IN CASES WHERE THE ACCIDENT SPEAKS FOR ITSELF AND THE PLAINTIFF CAN PROVE THE ACCIDENT BUT CANNOT PROVE HOW IT HAPPENED. IN SUCH CASES, THE BURDEN OF PROOF SHIFTS TO THE DEFENDANT TO EXPLAIN THE ACCIDENT.

S.K. Dubey, J.

1. This is an appeal under Section 173 of the Motor Vehicles Act, 1988, by the claimants for enhancement of the compensation awarded by the Motor Accident Claims Tribunal, Shivpuri (for short, the 'Tribunal'), in Claim Case No. 49 of 1987 vide award dated 1-4-1992.

2. On receipt of the notice, National Insurance Company has preferred cross-objections under Order XLI, Rule 22, C.P.C, read with Section 151 of the Code of Civil Procedure, whereby the Insurance Company has challenged the finding of rash and negligent driving by the driver of the vehicle--tractor, M.P.H. 9754 and has also contested that as the deceased was the passenger in the tractor-trolley who was going with the marriage party, the Insurance Company is not liable to indemnify the owner/insured. Therefore, the award passed against the Insurance Company holding it jointly liable to pay the compensation awarded by the Tribunal be set aside.

3. The facts giving rise to this appeal are that the deceased Sitaram was 25 years of age and was carrying on his livelihood by beating of Dhapli, a musical instrument, and was also doing the job of a labourer. On 8-5-1987, a marriage party was travelling in a trolley attached to the tractor which was going to Nayabkheda (Singhpur). At the relevant time, the tractor was being driven by Kulwant, owned by Jaswant Singh which was insured with respondent No. 3. At the place of occurrence on road, Sitaram was going ahead of the tractor as a pedestrian and was playing the Dhapli. As the tractor was in speed, because of the slope on the road near the nallah, the tractor rolled down as the driver lost control. The tractor, after dashing Sitaram, overturned, as a result of which Sitaram received multiple severe injuries. An F.I.R. (Ex. D/ 2-C) was lodged at the Police Station, Bhonti, District Shivpuri by one Dayaram, son of Basanta and the injured was taken to the Government Primary Health Centre at Manpura and thereafter, to Government Hospital at Shivpuri, and then to J.A. Group of Hospitals, Gwalior, where the treatment was given, but he could not be survived and died on 15-5-1987.

4. The widow, appellant No. 1 and the three minor children of the deceased, namely, Dayaram and Bhagirath, sons and Kumari Radha, daughter and the mother Mahila Chhitia, preferred a claim and claimed compensation of Rs. 2,95,000/- in various heads for the death of Sitaram, arising out of the use of the tractor. The owner/driver and the Insurance Company contested the claim. During trial, owner and driver absented who then were proceeded ex parte. The Tribunal, on appreciation of evidence adduced by the parties and the statement of the driver Kulwant Singh, who examined himself, recorded a categorical finding that at the time of the accident, the deceased was going on the road playing drum and not travelling as a passenger. The Tribunal further found that as admittedly the tractor and the trolley overturned, the doctrine of res ipsa loquitur applies, therefore, the burden was on the opposite side to prove that the accident did not occur due to the negligence of the driver and was inevitable. After holding that the driver Kulwant Singh lost control over the tractor, on the slope of the road resulting in the accident, determined the monthly earning of the deceased as Rs. 400/- and the dependency as Rs. 200/ - per month while selecting a multiplier of sixteen, determined the compensation of Rs. 38,400/-and also Rs. 2,000/-towards medical expenses. Out of the total compensation of Rs. 40,400/-, a deduction of 10% was allowed towards lump sum payment. Thus, the Tribunal awarded total compensation of Rs. 36, 360/- with 12% interest per annum from the date of the application till payment and the costs. It is this award of which the claimants, by this appeal, claim enhancement and the Insurance Company, by cross-objections, claims dismissal.

5. In support of cross-objections, Shri B. N. Malhotra, learned Counsel for the Insurance Company, contende