JUDGMENT 1. - This appeal has been directed against the judgment and award dated 20.1.1992 passed by learned Judge, Motor Accidents Claims Tribunal, Bhilwara, whereby he rejected the claim of the appellants-claimants. 2. Briefly stated, the appellants filed a claim petition before the Motor Accidents Claims Tribunal, Bhilwara, alleging, inter alia, that Jabbar, son of Gani Khan, by caste Musalman, aged 25 years, was travelling in trolley No. RJE 5618 hooked to the tractor No. RJE 5582 on 26.5.1986. The trolley was containing musk-melons 'kharbujas'. The trolley jumped while passing the square of village Amli-Bagla near the bridge, Jabbar fell down from the trolley and wheel of the trolley passed over his stomach. Jabbar sustained severe injuries and became unconscious. He was taken to Satellite Hospital, Shahpura, but he died on the way to hospital. 3. Badshah, brother of the deceased, lodged a first information report at Police Station Shahpura at 12.30 p.m. and a case under Sections 279 and 304A of Indian Penal Code, was registered. 4. It was pleaded by the claimants-appellants in the claim petition that at the time of death, Jabbar was carrying on business of selling vegetables and fruits (melons, cucumbers) in wholesale and was earning Rs. 1,200/- per month, he was a young man of 25 years of age and that claimants are his legal heirs and they were fully dependent upon the deceased Jabbar. In the claim petition, total compensation of Rs. 6,80,000/- was sought, for loss of income, mental agony, loss of company, love and affection and loss of future benefits as also the pain and agony suffered by deceased Jabbar before his death. 5. At the relevant time, respondent No. 1, Abid, son of Abdul Majid, was driver of the tractor No. RJE 5582 while the respondent No. 2, Abdul Majid, son of Habib Khan, was owner of the tractor. The vehicle was insured with respondent No. 3, Oriental Insurance Co. Ltd. 6. Respondent Nos. 1 and 2 submitted their joint reply before the Tribunal on 2.5.1987 wherein death of Jabbar was admitted due to accident. However, it was pleaded that driver of the tractor was in control of the tractor while driving and that Jabbar was sitting at the edge on front panel of the trolley. The driver asked many a times to sit inside the trolley but Jabbar did not pay any heed. However, it was pleaded that driver of the tractor was in control of the tractor while driving and that Jabbar was sitting at the edge on front panel of the trolley. The driver asked many a times to sit inside the trolley but Jabbar did not pay any heed. It was contended that, thus, Jabbar himself was negligent and when trolley jumped he lost his balance and fell down. Hence, it was pleaded, it was Jabbar who himself was responsible for the accident. 7. In its reply, respondent No. 3, the insurer of the vehicle, rebutted that the monthly income of deceased Jabbar was Rs. 1,200/- and contended that the tractor and trolley were insured for agriculture purpose and not for commercial use, hence, insurance company is devoid of the claim. The insurance company further submitted in its reply that driver of the vehicle was not negligent and that driver was not having a licence to drive the tractor. 8. On the basis of pleadings of the parties, learned Judge, Motor Accidents Claims Tribunal, Bhilwara, framed the following issues: XXXX XXXX XXXX 9. The claimants-appellants examined as many as four witnesses. The respondents did not examine any witness despite many opportunities. 10. While deciding issue No. 1, learned Tribunal came to the conclusion that principle of res ipsa loquitur did not apply to facts of the case and that there was no evidence that it was Abid who drove the vehicle negligently and with rashness, thereby causing death of Jabbar. Issue Nos. 3, 4 and 5 were decided against the insurer. However, in issue No. 2, learned Claims Tribunal came to conclusion that the claimants-appellants were entitled to receive Rs. 1,37,400/- as compensation but since issue No. 1 was decided against the claimants they were held not entitled to get the compensation. 11. I have heard learned Counsel for the parties and perused the record of the case.The contention of learned Counsel for the appellants is that the accident was admitted by the respondent, death of Jabbar was admitted in this accident and that learned Tribunal was not right in rejecting claim of the appellants on the ground that principle of res ipsa loquitur did not apply in the case. Learned counsel asserted that in the facts and circumstances, the principle of res ipsa loquitur applies.Learned counsel for respondent Nos. Learned counsel asserted that in the facts and circumstances, the principle of res ipsa loquitur applies.Learned counsel for respondent Nos. 1, 2 as well as learned Counsel for respondent No. 3 opposed the contention of learned Counsel for the appellants. 12. I have thoughtfully considered the rival contentions. Short question to be decided is-Whether in the circumstances of the instant case principle of res ipsa loquitur will apply? Scope of this principle was considered by the Apex Court in Syad Akbar v. State of Karnataka, 1980 ACJ 38 : 1980 TAC 83 (SC) and their Lordships observed: "As a rule, mere proof that an event has happened or an accident has occurred, the cause of which is unknown, is not evidence of negligence. But the peculiar circumstances constituting the event of accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to cause is coming forth from the defendant. To emphasise the point, it may be reiterated that in such cases, the event or accident must be of a kind which does not happen in the ordinary course of things if those who have the management and control use due care. But, according to some decisions, satisfaction of this condition alone is not sufficient for res ipsa to come into play and it has to be further satisfied that the event which caused the accident was within the defendant's control. The reason for this second requirement is that where the defendant has control of the thing which caused the injury, he is in a better position than the plaintiff to explain how the accident occurred... Thus, for the application of the maxim res ipsa loquitur no less important a requirement is that the res must not only be speaking negligence, but pin it on the defendant." 13. In the instant case, no eyewitness has been examined though challan Exh. 4 mentions the names of Kanhaiya Lai, Ladu and Lala. Name of Gaffar also finds mention in the challan but he has also not been examined on behalf of the claimants-appellants before the Tribunal. In the instant case, no eyewitness has been examined though challan Exh. 4 mentions the names of Kanhaiya Lai, Ladu and Lala. Name of Gaffar also finds mention in the challan but he has also not been examined on behalf of the claimants-appellants before the Tribunal. It was only Mishri Lal, AW 3, Investigating Officer in the criminal case, who has been produced. Mishri Lal deposed that after investigation he came to the conclusion that the accident occurred due to negligence of driver of the vehicle. He prepared site plan, Exh. 3. However, in the cross-examination, he admitted that when he inspected the place of occurrence, there were no signs of the accident. He did notice scratch marks of wheels but he was not in a position to say that scratch marks on the road were of that particular tractor and trolley. Besides, site plan, Exh. 3, does not have any mention of scratch marks of wheels of a vehicle. So, it cannot be concluded that the accident took place due to rash and negligent act of the driver of tractor. 14. No eyewitness has been produced on behalf of the claimants-appellants though they were available. In these circumstances, when the eyewitnesses were available and they were not produced before the court, the principle of res ipsa loquitur will not be applicable. In New India Assurance Co. Ltd. v. Ramchandra, 1990 ACJ 206 : 1988 (2) TAC 291 (MP) , cited by learned Counsel for respondents, it has been held that nature of surrounding circumstances is to be seen for deciding whether the maxim is applicable in peculiar circumstances of that case. The maxim will not be applicable where there is evidence to enlighten the court about cause of the accident. The principle of res ipsa loquitur applies only when considerable hardship is caused to the plaintiff as true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused the accident. 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. This view was taken by the Apex Court in Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co., 1977 ACJ 343 : 1977 TAC 307 (SC) . 15. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. This view was taken by the Apex Court in Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co., 1977 ACJ 343 : 1977 TAC 307 (SC) . 15. Learned counsel for the appellants also cited the decision rendered by this Court in Rajasthan State Road Trans. Corporation v. Pista Aggarwal, 1986 ACJ 23 (Rajasthan) and contended on the strength of this decision that the maxim of res ipsa loquitur was applicable. It does not apply on the facts of the case on hand as there were no eyewitnesses. They were not even cited. 16. From the judgment of the Tribunal on issue No. 1, I find that the Tribunal came to the conclusion that Jabbar was sitting on the edge of panel of the trolley and fell down on account of his own negligence. The Tribunal was right in coming to the conclusion that when musk- melons (kharbujas) and other articles did not fall from the trolley as a result of jump of the trolley, it was Jabbar himself who was responsible for sitting on the edge of panel of the trolley and was negligent. He fell down losing balance on account of his own negligence. In these circumstances, the maxim of res ipsa loquitur will not apply. I agree with the findings of the Tribunal on issue No. 1. 17. In view of aforesaid discussion, this appeal fails and is hereby dismissed. Costs are made easy.Appeal dismissed. *******