JUDGMENT : C.R. Thakur, J. 1. All these appeals arise out of a single judgment disposing of four separate applications registered as M.A.C. No. 37-S/2, 36-S/2, 33-S/2 and 35-S/2, of 1968 filed by different claimants for compensation oh account of the deaths of their relations in a bus accident which occurred on the 10th of September, 1908 at about 8.30 a.m. near Jandu. As all these applications have been decided by a single judgment, therefore all these appeals which arise out of the same accident shall also be disposed of by a single judgment. 2. Sohan Lal husband of Leela Devi, Sudama husband of Kalwati, Devi Dass husband of Paiwatu, and Phimpru husband of Nardo and Darshanoo met their deaths in the accident. They were travelling in bus No. PNT 3195 belonging to the Nalagarh Dehati Co-operative Transport Society Ltd., Nalagarh and it was driven by Mr. Labhu Ram. This bus was going from Dighal to Nalagarh because there was some fair on that day. The dependants filed their claim petitions before the Motor Accidents Claims Tribunal, Simla. Mrs. Leela Devi and her children claimed a compensation of Rs. 50,000/- on account of the death of Mr. Sohan Lal and it was stated in the claim petitions that the bus was overcrowded and the kacha retaining wall at the site of the accident gave way resulting in the accident Mrs. Kalawati claimed an amount of Rs. 5,000/- by way of compensation and in the petition the cause of the accident was as given above. In respect of its liability it was contended that its liability was limited to Rs. 2,000/- per passenger subject to a maximum of Rs. 20,000/- for all the passengers. 3. The owner of the vehicle i.e. The Nalagarh Dehati Co-operative Transport Society Ltd., Nalagard took the pleas that the maintenance and up-keep of the retaining wall was the responsibility of the H.P. Public Works Department and the defect, if any, in the retaining wall could not be foreseen by the driver and there has been no negligence on the part of the driver and the Union Territory of Himachal Pradesh be impleaded as a party. 4. The learned Tribunal framed issues in the case which were common to all the claims. However, one additional issue with regard to the limitation was framed in the claim petitions filed by Parwatu and Kalawati. 5. 4. The learned Tribunal framed issues in the case which were common to all the claims. However, one additional issue with regard to the limitation was framed in the claim petitions filed by Parwatu and Kalawati. 5. The learned Tribunal found that the petitions filed by Kirs, Kalawati and Mrs. Parwatu though were barred by one day but there was sufficient ground for condoning the, delay and he, therefore, held the petitions within time after condoning the delay. 6. From the judgment of the learned Tribunal it appears that during the course of the evidence the claimants, tried to establish that a stone was lying on the road arid the drive without removing the stone took the bus to the extreme left side of the road which ultimately resulted in the accident. The learned Tribunal observed that there was no plea in the claim petitions that a stone was lying on the road and the driver was negligent in taking the bus to the extreme left side of the road and this was the cause of the accident and he held that the claimants could not be permitted to make out a new case in the course of evidence and even otherwise there was no reliable evidence on the record to prove that a stone was lying on the road and there was any negligence on the part of the driver in not removing the stone. Otherwise too according to the findings of the learned Tribunal the evidence produced by the claimants to the effect that there was any stone lying on the road, was not a satisfactory evidence to that effect. According to the findings of the learned Tribunal the accident occured because of the fact that the retaining wall gave way which resulted in the accident and for that it was the H.P. Public Works Department who was negligent in not keeping the retaining wall in perfect condition. Nor there was error of judgment on the part of the driver in keeping the bus to the left side of road and in fact he held that the accident did not occur due to the negligence of the driver. 7. He also gave his findings with regard to the compensation in case it was found that the driver was negligent and the accident occurred because of his negligence. Leela Devi was held entitled to a compensation of Rs. 7. He also gave his findings with regard to the compensation in case it was found that the driver was negligent and the accident occurred because of his negligence. Leela Devi was held entitled to a compensation of Rs. 25,000/- and the claimants in the other three petitions were cach held entitled to Rs. 5,000/- and this liability was fastened on the owner. 8. In this appeal before this Court the learned Counsel for the Appellant has challenged the findings of the learned Tribunal as contained in para 8 of the judgment in which it has been observed that the Petitioner could not be permitted to take a new plea during the course of evidence. According to the learned Counsel the driver was negligent for three reasons. First, he did not remove the stone and second, there was over crowding and third, there was a wrong judgment waile negotiating a curve. 9. Miss Kamlesh Sharma, the learned Counsel for the Appellant, submits on the basis of Bhagwati Prasad Vs. Shri Chandramaul, that if a plea is not specifically made yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. In the application which, is a form prescribed under the rules, there is a column No. 23 under which the applicant is required to give, the cause of accident with brief description and in the application filed by Mrs. Nardo widow of Phimpru the cause of accident is given "fall of the bus into the khud". In the other claim-petitions, excepting that of Mrs. Leela Devi the same cause for the accident was assigned in the application but in the application of Mrs. Leela Devi the pause of accident was stated to be the over-crowding and that the retailing wall collapsed and the bus fell into the khud. The Respondents. The Nalagarh Dehati Co-operative, Transport Society Ltd. had raised a preliminary objection stating therein the, claim-applications deserved dismissal as no negligence had been attributed to the driver of the vehicle and further it was averred that the application deserved dismissal as the accident took place on account of the kacha retaining wall having given way. The Respondents. The Nalagarh Dehati Co-operative, Transport Society Ltd. had raised a preliminary objection stating therein the, claim-applications deserved dismissal as no negligence had been attributed to the driver of the vehicle and further it was averred that the application deserved dismissal as the accident took place on account of the kacha retaining wall having given way. This was an act of God and there was tip negligence on the part of the driver of the bus. The bus was being driven at a very slow speed and cautiously. In reply to column 24 of the petition it was admitted that the bus fell down in the khud but it was further stated that it was on account of the reason that kacha retaining wall give way and there was no negligence of the driver of the vehicle. The claimants cannot claim compensation as the accident was an inevitable one and an apt of God. Therefore, the only cause assigned by the Appellants except Mrs. Leela Devi was that vehicle fell down into the khud which in a way reacted in the death of their breadearners. Therefore, from the pleadings it is quite evident that there was no plea that there was a stone lying on the road that the driver did not remove the stone and despite the obstruction because of the stone on the way the driver drove the bus which hit against the stone and which ultimately resulted in the falling down of the bus into the khud taking the toll of the lives of their bread earners The authority which is made the basis for the proposition that if a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence will not be of any assistance to the Appellants because that a suit for ejectment in which the Defendant had admitted the title of the Plaintiff in regard to the plot and pleaded that he was to remain in possession of the house until the amount spent by him in its construction was returned by the Plaintiff. The Plaintiff led evidence about the tenancy set up by him and the Defendant led evidence about the agreement on which he relied. Both the pleas were clear and specific and the common basis of both the pleas was that the Plaintiff was the owner and the Defendant was in possession by his permission. So it was in these circumstances that it was held that if the plea was not expressly taken in the pleadings, it would not necessarily disentitle a party from relying upon it, if it was satisfactorily proved by evidence. The other authority which is sought to be pressed into service in support of the aforesaid proposition is Vidya Wati and Ors. v. Himachal Govt. Transput and Ors. 1970 ACJ 424 . This authority is also not at all attracted to the facts of the present case. In the case relied upon the Petitioner-claimants stated against column No. 22 of the proforma that the deceased had four minors. He was doing P.W.D. work worth lakhs and in fact no cause of the accident was given and the Respondents filed their written statements but no objection was taken therein to the allegation regarding the negligence of the Respondents or the driver of the said bus. On the other hand, the Respondents had pleaded that the accident was inevitable and not due to the negligence or any fault of the owner or of its employee. They had further stated that the accident was not caused through the negligence or rashness or any fault on the part of the Respondent or its driver, but it was inevitable due to the wrong stacking of stones on the road side by the P.W.D. (B. and R.) H.P. coupled with the acts of nature. But in the case at hand the Petitioners other than Mrs. Leela Devi had specifically mentioned that the cause of accident was the falling down of the bus into the khud. Mrs. Leela Devi, however, stated that the bus was over-crowded and the kacha retaining wall collapsed and the bus fell down into the khud. The plea taken by the Respondents is that the kacha retaining wall collapsed which resulted in the falling down of the bus. Mrs. Leela Devi, however, stated that the bus was over-crowded and the kacha retaining wall collapsed and the bus fell down into the khud. The plea taken by the Respondents is that the kacha retaining wall collapsed which resulted in the falling down of the bus. Therefore, in these circumstances, in my opinion, this authority has got no relevancy as already stated above and the learned Tribunal was perfectly justified in not permitting the Petitioners to adduce evidence that there was a stone (boulder) lying on the road and the driver was negligent in taking the bus to the extreme left side of the road and this was the cause of the accident. It is a common case between the parties that the width of the road was about 15/16 feet at that particular point and there was a land slide towards the hill and about 3 feet of the road was under the debris fallen from the land slide and there was only a width of 12 feet left at that place and, therefore, the driver could not be said to be negligent if he had taken the bus towards the outer side. He had also left a margin of about 3 feet portion of the road towards the outer side and it is also a common case between the parties that the retaining wall underneath that particular portion gave way and the bus fell down into the khud. Therefore, if the road gave way then for that matter the driver cannot be held responsible because it was the negligence of the P.W.D. not to keep the road in its perfect condition. It is also evident from the evidence that the rains had stopped and traffic was already going on that road. If that was so, no negligence can be attributed to the driver if the road sank and the bus went into the khud. It was beyond his control and the story that there was a stone lying in front of the road and that the driver was negligent although he was requested by the passengers sitting inside that bus to stop the vehicle and to remove the boulder is at variance with the pleadings. There is no evidence if the vehicle struck against the boulder which was said to weighing about two maunds. There is no evidence if the vehicle struck against the boulder which was said to weighing about two maunds. Therefore, if there is no evidence on the record that it struck against that boulder then it is also futile on the part of the learned Counsel for the Appellants to say that the driver was negligent in not removing the stone which was lying on the road. Reference was invited to the statement of A.W. 5 by the learned Counsel for the Appellant to show that there was a stone lying on the road. Some of the passengers said to the driver that they would remove the stone. The driver said there was no need of removing the stone. The driver tried to back the bus and while doing so the bus fell into the khud. But this does not show that the bus in any way hit against the stone. Rather the driver in his anxiety to save the bus from striking against the stone tried to back it but as ill luck would have it the kacha portion of the road sank and gave way and, therefore, no negligence can be attributed to the driver on this score even if it may be admitted that there was a stone lying on the road. But the testimony of this witness stands totally belied when he himself says in cross-examination that he did not see the stone lying on the road and he is making a heair-say statement and those persons from whom he heard have not been produced in the witness box. The testimony of this witness on this account is wholly inadmissible and further he is also quite ignorant of fact if the sport of occurrence had sunk and on that account the bus had fallen down into the khud. Further reference was invited to the statement of A.W. 9 about the lying of the stone in the road. He also-makes a similar statement. According to him the driver swerved the bus towards the Dunga and when the bus swerved towards the Ounga it fell down into the khud. Although he states to have seen the stone but he is not aware of the size of the stone even approximately. In cross-examination he had quite unequivocally stated that passengers were standing in front of him and he could not see the road. Although he states to have seen the stone but he is not aware of the size of the stone even approximately. In cross-examination he had quite unequivocally stated that passengers were standing in front of him and he could not see the road. Therefore, his testimony is also not of a credible nature. Attention was also invited to the statements of A.W. 13, R.W. 3, R.W 5, R.W. 6 and R.W. 7. R.W. 13 has stated that a stone had fallen from the hill side on the road near the eroded part of the road and that the bus could not have passed over the stone. In fact he is a man who was not travelling in that bus He is a Lines Officer, Mandi and according to his testimony it would appear that the stone was near the portion where there was a land slide and the stone he saw could he removed by 3 or 4 persons and on the left side of the stone towards the khud there was about 10 feet of vacant road If it was so then it is absolutely wrong to say that the bus could not pass over that portion of the road because the width of the bus as admitted at both ends during the course of arguments before me was not more than 9 feet. He also has been produced by the claimants to prove the site plan which in fact was prepared by one Mr. Nanak Chand and who has not been produced in the Court. This witness could not read even the marginal notes and, therefore, his testimony is wholly irrelevant except to what he actually saw on the spot and he has also clearly stated towards the fag end of his statement that a separate plan had also been prepared by the P.W.D. which was sent to him but in that plan the stone was not shown. Therefore, the testimoney of this witness has got no material effect in favour of the Petitioners. R.W. 3 who was also travelling in that ill fated bus has denied to have seen any stone lying on the road. Therefore, the testimoney of this witness has got no material effect in favour of the Petitioners. R.W. 3 who was also travelling in that ill fated bus has denied to have seen any stone lying on the road. According to this witness the width of the road at that point was about 7 or 8 feet and that portion was kacha and the tyre of the bus sank into the earth and which ultimately resulted in giving way of that portion of the road resulting in the fall of the bus into the khud. Hence I do not know as to how the learned Counsel for the Appellant tries to utilize the statement of this witness in her favour with regard to the existence of a stone on the road at the place of accident. R.W. 6 no doubt had stated that there was a stone on the road. He was a conductor in the bus and according to him the weight of the stone was about 2 maunds kacha which means about 30 kilograms and he has denied that the passengers had shouted to the driver not to take the bus on the extreme left side of the road or that they had volunteered to remove the stone. Further according to him, the stone was lying about half a foot inside the road on the hill side and that the stone was visible to the driver. If that were so, then there was no obstruction because of the existence of the stone. R.W. 5 also denies if there was any stone on the road towards the hill side. R.W. 7 also does not state about any stone or any obstruction of that kind. Therefore, in the first instance there was no plea taken by the Appellants about any obstruction in the form of a big stone lying on the road which made it difficult for the bus to go ahead or that it struck against that and secondly there is no evidence which may inspire confidence about a stone on the road and which can be said to be an immediate cause of the accident. On the contrary the plea taken right from the initial stage by the Respondents was that the portion of the road was kacha and that there was a land slide towards the hill and the road was narrow on that particular point. On the contrary the plea taken right from the initial stage by the Respondents was that the portion of the road was kacha and that there was a land slide towards the hill and the road was narrow on that particular point. The traffic was going on as is clear from the statements of the witnesses. There was a fair on that day and several buses were plying but at that particular time and at that particular portion where, the width of the road was about 12 feet and the width of the bus as stated by R.W. 7 was about 9 feet the tyres stuck into the earth and which ultimately gave way which resultted in the fall of the vehicle into the khud and, therefore, this was an act which was undoubtedly inevitable and beyond the control of the driver for which he could not at all be held negligent. Consequently the findings of the learned Tribunal on this point cannot be disturbed because that is in consonance with the evidence and against the pleas raised by the Appellants in their claim- petitions. 10. The learned Counsel for the Appellants has also contended that there was over-crowding as also wrong judgment on the part of the driver in negotiating the curve and which were also the causes which resulted in the accident. 11. About the first point there is no doubt that Mrs. Leela Devi had taken this point that the bus was over-crowded and the learned Tribunal has also held that the bus was over-crowded but according to the learned Counsel the learned Tribunal had not given any finding as to what was the effect of that over-crowding. According to the findings of the learned Tribunal the sitting capacity of the bus was 31 and that according to the witnesses there was 35 or 36 passengers in the bus and one witness has gone to the length in stating that there were some passengers who were sitting on the roof of the bus but it has rightly been pointed out by the learned Tribunal that it had not been proved by the Petitioner claimants as to what was the total number of the passengers so as to say with certainty that the bus was really over-crowded. However the learned Tribunal found that there were more than 40 passengers travelling in the bus. However the learned Tribunal found that there were more than 40 passengers travelling in the bus. The learned Counsel for the Appellants on these findings wants this Court to hold that the impact of this over-crowding was that the land which was kacha could not bear the burden of that earth-crowding and as such the tyres of the bus sank into the earth and which ultimately gave way but this submission of the learned Counsel cannot be accepted as correct that it was because of the impact of this over crowding that the road or the retaining wall gave way resulting in the accident. It is an admitted fact that the road was kacha and the constant plying of the vehicles the portion had become so vulnerable that it could not bear any further burden and it was none of the faults of the driver who carried the passengers in that bus. It was not the only bus, there were large number of buses which had been plying especially because of the fair at Nalagarh on that day and if that particular bus met with the accident, the same cannot be attributed to the negligence or any lapses on the part of the driver. If there was any over crowding that could be attributed only to the conductor who as a matter of fact is responsible for the issue of tickets. It was not for the driver of the bus to issue the tickets to the passengers. His only duty is just to sit at the wheels and to drive the vehicle, and it is the duty of the conductor alone to see that he does not permit ovor-crowding and if he did I am afraid if the driver can be said to have contributed towards the negligence of the conductor or acquiesced therein. Therefore, oh that score also the Petitioners cannot hold the driver negligent. 12. The third point raised was about the wrong judgment of the driver but this point should not detain us very long. No witness either for the Petitioners or for the Respondents has stated that the driver had driven the vehicle rashly rather the evidence is to the effect that when there was a stone seen by the passengers on the road side then he did not go ahead rather he backed the bus in order to avert any accident. No witness either for the Petitioners or for the Respondents has stated that the driver had driven the vehicle rashly rather the evidence is to the effect that when there was a stone seen by the passengers on the road side then he did not go ahead rather he backed the bus in order to avert any accident. The road was narrow and there was only a margin of 3 feet towards the edge and that portion gave way and so it was none of the faults of the driver. 13. The learned Counsel for the Appellants also tried to invoke the principle of Resipsa loquitur and also relied upon a number of authorities in that behalf. According to the learned Counsel if the bus had fallen into the khud and the Petitioners' supporters had died in the accident that was sufficient by itself to show that there was negligence on the part of the driver. There can be no doubt with the principle as has been enunciated in the different authorities Here in this case neither there was any mechanical defect in the vehicle nor was the driver found or proved to have driven the bus in a reckless or rash manner. When the bus reached at the particular sport, it is a common case between the parties, that there was a land slide towards the hill which had covered a portion of about 3 feet or so of the road by the debris and the remaining portion of the road was about 12 feet. The width of the vehicle was 9 feet and there was another 3 feet margin towards the edge and it is also proved that that portion of the road or the retaining wall was kach and the driver was not in any way negligent as already stated. The read gave way under the bus and which was not within the control of the driver and so the principle of Res is paloquitur could not be applied to the present case. 14. These were the only points that were argued but in my opinion they have no substance and, therefore, the result is that these appeals fails and are hereby dismissed with no orders as to costs.