JUDGMENT V.S. Deshpande, J.
(1) This is an appeal against the Older dated 27th August, 1906 passed by the Mtoor Accidents Claims Tribunal, Punjab at Chandigarh, under section 110-B of the Mtoor Vehicles Act, 1939 (hereinafter called the Act) awarding damages to the respondent No. 1 against the appellant and respondent No. 2.
(2) The respondent No. 1 and his wife were passengers in Bus No. 2357 belonging to the appellant and driven by its employee respondent. No. 2. On the 27th June, 1963, the bus was going from Kulu toPathankto. The bus was traveling from Kulu to Pathankto when it sufferred an accident in which the respondent No. 1 and his wife were injured. The respondent No. 1 and his wife made two applications for compensation under section 110 A of the Act. These applications were the basis of the claim for compensation made by the respondent No. 1 and his wife. Under the heading "Cause of accident with brief description", respondent No. 1 and his wife simply stated as follows :- "WHENthe bus reached Nagrtoa at about 2-30 p. m. it struck against a tree and turned on its right side causing serious grievous injuries to the petititioner. This accident was caused due to the negligence of the respondents. The vehicle had nto been properly checked up before being sent out on the hilly journey and toher acts of emmission and commission were responsible for the said accident. the accident having been caused due to the act, neglect or default of the respondents, they are liable to compensate the petitioner in damages for the injuries sufferred by him".
The petitioner then claimed general and special damages. But the important point to ntoe is that the only pleading of facts on which the claim was based was that the vehicle has nto been prperly checked u before being ou on the hilly journey. Under section 110-C of the.Act, the claims Tribunal may, subset to any rules that may he made in this behalf, follow such summary procedure as it thinks fit. The tribunal has been given to powers of a Civil Court for the purpose of taking evidence enforcing the attendance of witnesses and of compelling the discovery and production of documents and for such toher purposes as may be prescribed. In actual practice the procedure followed by the Claims Tribunal is analogous to that of a Civil Court. At any rate the broad rules of pleadings apply to every Tribunal following the Rules of Natural Justice. The verv object of describing the cause of accident in the application turn compensation in the prescribed form was to inform the respondent on what grounds the claim for compensation was based. Withhout being so informed, the respondent would nto know against what grounds precisely he is to defend himself Secondly the applicant having once taken up a definite ground in the pleading, cannto be allowed to make out a new one in evidence. It was necessary,therefore, for the respondent No. 1 and his wife to state fully the facts on which their claim for compensation was based.On the pleading made by them, their claim was based on the fa:t that the vehicle had nto been properly checked up before being sent out on the hilly journey. Their further statement that "fiber acts of comission and commission were responsible for the said accident" was too va"us in as much as no particular act was stated to have been so responsible for the accident. Similarly, their statement that "the accident having been caused due to the act, neglect or default of the respondents, they are liable to compensate the petitioner is also a mere conclusion of law and nto a statement of fact at all. There is thus no pleading of negligence on the part of the bus driver, respondent No. 2 at all. The only pleading is of negligence in nto maintaining the bus in a fit condition on the part o( the appellant.
(3) In the written statement before the Tribunal the appellant and respondent No. 2 pointed out that the accident was nto due to any wrongful act or negligence on their part. "The vehicle had been properly checked before it was pto on road on that day. There was no perceiv. able defect in the vehicle and it was in good condition. If it was nto so, the vehicle would nto have covered a distance of aboat 80 miles from its start. The stub axle of the vehicle which is a delicate part of the steering machanisam suddenly developed certain mechanical defect, which resulted in the accident. The presence of mind and the cleverness of the driver averted a major and serious accident, which would be apparent from the remarks of the petitioner which be made in the Complaint Book just after the accident, a copy of those remarks is attached herewith. Had the stub axle been defective from the very start, thbus would nto have travelled a distance of about 80 miles from its start and this defect would have easily been ntoiced by the driver. This clearly shows that the accident was nto due to any wrongful act or negligence either on the part of the driver or any toher employees of the Corporation." The appellant and respondent No. 2 appended to their written statement the following remarks made by respondent No. 1, Sbri J. S Madan in the Complaint Book kept with the bus : - "Icongratulate the Mandi Kulu Road Transport Corporation on keeping expert drivers particularly the one who was driving bus No, HIM-2357 which met with a very severe accident on 17th June, 1963 I must say this tragedy would have been much great had the driver nto used in I is presence of mind very much worth appreciation but I do nto congratulate the Corporation for keeping badly maintained and machanical defected buses. This accident has been purely due to some mechanical defect(ed)."
The pleadings therefore confirm that the case of the claimants was simply that the bus had nto been properly maintained by the Mandi Kulu Road Transport Corporation and in the words of respondent No. 1 "this accident has been purely due to some mechanical defect".
(4) The lack of proper maintenance of the bus by the appellant should have been therefore the only issue for trial before the claims Tribunal and it is only if that issue had been proved that the question of what damages should be awarded to the Respondent 1 and his wife would have arisen. The claims Tribunal, however, framed issue No. 1 in a routine manner as the Tribunal seems to have been accustomed to deal mostly with cases in which accidents are caused by the negligence of the drivers. Further, the main issue whether the appellant had nto properly maintained the bus to make it fit for travel was nto framed at all by the Tribunal. Thus, the Claims Tribunal made out a new case to be proved by the claimants, viz., that the accident was caused by the negligence of the bus driver. The result was that a conscious effort was made by the claimants at the stage of the evidence to prove the negligence of the mtoor dliver though this was nto pleaded by them at all. It is in this context that the evidence adduced on behalf of the respondent has to be appreciated, The main witnesses for the respondent were A. W.-4 Shir Kumar and A W -5 Janak Raj respondent No. 1. Btoh these gentlemen had absolved the bus driver of all negligence immediately after the accident by waking appropriate remarks in the Complaint Book. But because they were forced by the wrongly fiamed issue No. 1 to make out that the accident was doe to the negligence of the driver, they tried to explain away these remarks as being obtained from them when they were nto in good physical condition, l'he learned Claims Tribunal has nto given the due importance to the remarks made by Aw 4 Shiv Kumar and Aw 5 Janak Raj, respondent No I in the Complaint Book shortly after the accident. At that time these gentlemen were fully aware of what exactly had happened. Their minds were properly directed towards the cause of the accident which caused them injuries. In their moral indignation they were bound to pinpoint the precise cause of the accident and to put the blame where it should lie. If at that time they confindently absolved the bus driver altogether from any negligence, it must be found that the accident was nto caused by any neg- ligence of the bus driver. This admission of respondent Wo I should weigh more with the Court than the subsequently adduced evidence. The particular shape which the evidence took was the result of the wrong issue framed by the Claims Tribunal. If the issue had rto been wrongly framed it may be that no evidence at all would have been adduced by the respondents to show that the but driver was negligent AW-4 Shiv Kumar felt himself so committed to show that the bus driver tried to overtake a goods vehicle and therefore drove the right front wheel into a depression that he completely denied that there was any noise of breaking something in the bus and that thereafter the bus went out of control of the driver. Even AW-5, respondent No. 1, admitted that when the bus was falling in the khud he heard some noise in the bus though he would nto say horn what portion the noise had come.
(5) Right from the begning the cause of the appellant as ststed in the written statement was that the accident was caused by the sudden development of a defect in the stub axle. The witnesres for the appellant are all agreed that it was the brarking of the stub axle which caused the accident. RW-1 Gyani Balbir Singh was nto an employee of the appellant but came to the spto of the accident from a neighbouring work-hop and found that the stub axle of the right front wheel had been broken. RW5 Jaswant Singh was a passenger in the bus at the time of the accident. He says that he heard some noise from engine of 'gargar" and the bus suddenly fell to the right side down into the ditch about four feet and that the driver was driving the vehicle properly. Rw 6 Jagan Nath who was a police mechanic. Head Constable of Dharmsala. also went to the shop and found that the stub axle, the king pin, the right spring assembly, the rubber hose pipe and the radiator were all broken and there was a mark on the ground of a drag by some metallic thing on the road. He said that the stub axle and the king pin could have been broken before the accident and could nto have been broken alter the accident. While it is tiue that the stub axle could have been broken only before the accident it is nto correct to say that the king pin also must have been broken before the accident. It is only one thing that is either the stub axle or the king pin, which if broken, could cause the wheel to separate from the bus and cause the accident. The breaking of btoh was nto therefore necessary. The drag maik on the ground could be caused by the axle when broken and the wheel was off. These impartial witnesses who are nto emloyees of the appellant have made out a clear case that the cause of the accident was the breaking of the stub axle. The rest of the breakage must have occurred after the breaking of stub axle.
(6) The real question for decision therefore is whether the breaking of the stub axle was due to the negligence of appellant in nto maintaining the bus properly. This question cannto be decided unless we know precisely what a stub axle is, where it is situated and how it is maintained. Firstly, there is the front axle. At the two ends of the front axle are joined two stab axles by king pins. While the front axle is fixed the stub axles can move sideways to help the turning of the vehicles by means of the steering mechanism. On these stub axles are mounted bearings and on the bearings is mounted the brake-drum on which there is the hub over which is mounted the wheel of the bus. The stub axle is a part, therefore, which is never seen from outside. It is a part which is manufactared to serve the car or the bus permanently It is nto something which has to be changed after some time. Nor is it a part which has to be serviced or looked after. The bearings which are mounted on it are greased through the boles. Generally, only the wheel is taken off at the time of servicing The grease is put through the holes when the hub is on the brake drum and the breake drum is mounted on the bearings. The stub axle cannto be seen and does nto require any greasing or any toher particular maintenance. If it develops acrack, the reason must be a defect or an imperfect workmanship on the part of the manufacturer. This defect cannto be discovered by any amount of diligence on the part of the bus owner, so long as the crack in the stub axle does nto affect the performance and the running of the bus This is who is called therefore a "latent" defect, that is to say a defect which cannto be discovertd by reasonable diligence on the part of the bus owner (7) RW-2 Rangil Chand, Rw 7 Surjipt Singh and RW.-8 Chaudhry Ram, the bus driver are all employees of the appellant whose duty it was to find out the cause of accident. They were unanimios in saving that the breaking of the stub axle was the cause of the accident. This evidence is worthy of credence because it is squarely based on the pleading made by the appellants. RW-/ Surjit Singh has explained that it was when the stub axle broke and the vehicle rested on the piece of the-stub axle that the king pin was damaged. This evidence corrects the evidence of RW-6 Jagan Nath and shows that the king pin must have been broken after the accident. There is absolutely no evidence except that of KW-6 Jagan Nath to show that the king pin could have borken before the accident. It is nto possible to accept that parr of Jagan Math's evidence in as much as it is opposed nto only to the pleading of the appellant but also to the evidence of RW-2 Rangil Chand, RW-7 Surjit Singh and RW-8 Chaudhry Ram.
(8) RW-7 Surjit Singh says that the stub axle had developed an internal crack which ultimately resulted in its breaking into two pieces. As the stub axle is never open to visual inspection and is nto to be serviced or greased, there was no duty on the part of appellant to take off the beake-drum and the bearings from the stub axle and to examine it microscopically for the discovery of a crack. Further such a crack in a stub axle is an extremely rare event. The breaking of a stub axle is a very very rare case. This being a scientific fact, judicial ntoice can also be taken of it.
(9) These employpes of the appellant have further stated that the vehicle had been properly maintained. RW-9 Baldev Singh also produced a register showing that the bus was inspected on the 19th and the 26th of June shortly before the accident. The evidence regarding the maintenance is, however, hardly necessary inasmuch as the stub axle was such a part of the vehicle as did nto require any maintenance as such. On a critical examination of the pleadings, issues and the evidence in this case therefore the only conclusion possible is that the stub axle suddenly broke due to a manufacturing defect. The defect in the stub axle was latent one. It never became patent inasmuch as it did nto affect the performance of the bus and therefore did nto impose on the appellant any duty to take off the beake-drum and the hearings from over the stab axie and to microscopically inspect it. The sudden breaking of the stub axle alone caused the accident. Neither the appellant nor respondent No. 2 was therefore, responsible for it.
(10) It is regrettable that innocent people like respondent No. 1 his wife and tohers suffered injuries in the accident. Unfortunately, however, all our sympathy for them cannto make a difference in the legal position which is that they are nto entitled to damages from the appellant inasmuch as no negligence at all on the part of the appellant or respondent No. 2 has been proved. I am constrained, therefore, to disallow the claim for damages. On the above findings, I set aside the order of the teamed Claims Tribunal and allow the appeal but make no order as to costs. Against the order of the Tribunal awarding damages to Mrs. A. Madan, wife of respondent No. 1 the appellant had filed petition which was treated as one under Article 227 of the Constitution. For the reasons given above, that petition (C.M.P.No.205 of 1906) is also allowed without costs and the award of damages to Mrs. Madan by the Tribunal is also set aside.