JUDGMENT : Alok Singh, J. 1. The facts and questions of law in all the appeals are common, therefore, all the appeals are taken together and disposed of by this common judgment. 2. Brief facts of the present case are that on 18.12.2009, one Bolero (Jeep) bearing registration no. UA 06 F 3639 was going from Jaspur to Delhi. On Moradabad – Delhi National highway, near Punjabi Dhaba at about 06.00 a.m. one tractor bearing registration no. UP 21 T 2304 hit the Bolero (Jeep). In the accident, Shamim (Driver), Danish, Zabir, Jamsheed, Shakir received injuries and they succumbed to injuries. Shakir Hussain also received injuries but survived. Saleem Ahmad reported the matter to the police. Legal heirs of the deceased and injured Shakir Hussain filed claim petition before the Motor Accidents Claim Tribunal. The Tribunal allowed the claim petitions and awarded claims against the insurance company of tractor. Feeling aggrieved, the insurance company of tractor i.e. the United Insurance Company approached this Court. 3. Mr. Pankaj Purohit, Advocate for the appellant – Insurance Company submits that present is the case of contributory negligence, as there was head on collision between the two vehicles; trolley attached with tractor was not insured and at the relevant time, it was not used for agricultural purposes but for commercial purposes; when there is head on collision, then it must be a case of contributory negligence. He further submits that had the driver of Bolero vigilant, this accident would have been avoided. He submits that in the present case, doctrine of “res ipsa loquitor” comes into play. He further argues that the driver of the offending vehicle did not have valid driving license; and tractor was used for commercial purpose. He further submits that owner of the tractor himself stated that accident occurred due to rash and negligent driving of Bolero’s driver. For the contributory negligence and to apply principles of “res ipsa loquitor”, he has placed reliance on the judgment passed by this Court in Appeal From Order No. 259 of 2006 (United Insurance Company Vs. Smt. Neema Parihar) decided on 04.05.2009 and judgment passed by Division Bench of Gujarat High Court in Gujrat State Road Transport Corporation Vs. Kamlaben Valjibhai Vora reported in 2002 ACJ 780 . 4. Mr. Bindesh Kumar Gupta, owner of the tractor, submits that tractor was not used for any commercial purpose at the time of accident. Smt. Neema Parihar) decided on 04.05.2009 and judgment passed by Division Bench of Gujarat High Court in Gujrat State Road Transport Corporation Vs. Kamlaben Valjibhai Vora reported in 2002 ACJ 780 . 4. Mr. Bindesh Kumar Gupta, owner of the tractor, submits that tractor was not used for any commercial purpose at the time of accident. The tractor was carrying bricks for making wall of tube well. In support of his contention, he has placed reliance on the documentary evidence placed before the Tribunal. 5. Mr. Tarun Pandey, Advocate for the claimants submits that there is no illegality or infirmity in the impugned judgment and the learned Tribunal has rightly passed the award. 6. Having heard learned counsel for the parties and perusing the record, let me now examine first whether it is case of contributory negligence. 7. From perusal of site plan, it transpires that road was very wide and there was divider between the roads. The road was so wide that four trucks can be passed simultaneously. Since it was a divider road and Bolero was on its own correct side and the tractor was coming from wrong side i.e. from the opposite direction and hit the Bolero, which resulted into the accident. Therefore, it cannot be said to be a case of contributory negligence. It has also come on the record that Bolero was going slowly, which was fructified by the site plan, as Bolero was going on its extreme left side. 8. So far as judgment relied by the learned counsel for the appellant Insurance Company in the case of Neema Parihar (supra), I do not find its relevance in the present case. In the case of Neema Parihar, Union of India had not adduced any evidence against the offending vehicle, therefore, the learned High Court presumed that it was case of contributory negligence whereas in the present case, site plan and injured witness, speak in volume that accident occurred due to rash and negligent driving of driver of tractor – Hompal. Site plan is not disputed by the appellant insurance company. 9. Mr. Pankaj Purohit, learned counsel for the appellant has placed reliance on paras 22, 23 and 29 of Gujrat State Road Transport Corporation judgment, which read as under: “22. Site plan is not disputed by the appellant insurance company. 9. Mr. Pankaj Purohit, learned counsel for the appellant has placed reliance on paras 22, 23 and 29 of Gujrat State Road Transport Corporation judgment, which read as under: “22. Insofar as the discharge of onus of proof in a case of claim based on tortious liability when several opponents or defendants are involved, it is necessary to show as to what was the cause of accident and who was the author of the cause of accident. If the harm or injury is the outcome of joint tort or by more than one defendant or opponent, all are joint tort-feasors. If the defendant or the opponent is responsible to an extent in the happening of the tort, then in that case, it has to be ascertained, as to what is the contribution of such a tort-feasor. No doubt, apportionment of tortious liability or the quantum of tort may not be necessary in all cases, as the victim of tort is eligible and qualified to claim compensation from one or more tort-feasors when it is a case of joint tort-feasors. When one of the persons affected or harmed or wronged or injured is partly responsible in the cause of tort, it becomes necessary to ascertain the extent or the contribution of such a person in the happening of a tort or an accident in question as the damages awardable to such a person is required to be sliced down corresponding to the extent or in proportion to the degree or contribution made by such person. It becomes so necessary to assess this aspect when more than one vehicle is involved or more than one tort-feasor is involved in a case of damages based on tort. 23. No doubt, ordinarily, in a case of tort arising out of use of vehicles, when more than one vehicle is involved, and ordinarily, in a case of head-on collision between two vehicles, and that too, on highway, cause of negligence may be, equally, apportioned, and more so, when it happens in a broad daylight in absence of any other contrary evidence. When it becomes difficult to distinguish or separate the extent or degree of negligence, when there is a collision between two vehicles, in absence of any other precise and clear and consistent evidence, the driver of each vehicle, ordinarily will be held, equally, accountable or in other words, the contribution of each tort-feasor would be 50 percent. Nonetheless, when there is contrary evidence on record indicating larger extent of negligence on the part of a driver of a particular vehicle in a given fact situation, apportionment of negligence, accordingly, can be made. It may happen in a given case that liability of particular driver even in a case of head-on collision in broad day-light also is probable because the sole negligence of me driver of one of the vehicles. The cause of tort or the accident based on tort may be on account of sole and sheer negligence on the part of such a driver. 29. It would be, at this stage, interesting to refer to the observations made by W.B.H. Rogers in his book "Law of Tort" which reads as follows: "Res ipsa loquitur means that an inference of negligence is raised against the defendant by reason of the happening of certain events. As an American Judge laconically remarked in a bizarre early product liability act in, "we can imagine no reason why, with ordinary care, human toes could not be left out of chewing tobacco, and if toes are found in chewing tobacco, it seems to us that somebody has been very careless." It is commonly said that two conditions must be met to entitle the plaintiff to rely upon the maxim. First, the thing causing the damage must be under the control of the defendant or his servants. Thus, in one case it was applied where a barrel rolled out of the storeroom above the defendant's shop and struck the plaintiff, who was passing by. But where, in an American case, the plaintiff was hit by an armchair dropped from an unidentified window of the defendant's hotel on V.J., day, it was rejected, for the guest, not the hotel management, was in effective control of the contents of the room from time to time. The second requirement is that the accident must be such as in the ordinary course of things could not happen without negligence (or worse). The second requirement is that the accident must be such as in the ordinary course of things could not happen without negligence (or worse). This condition was certainly satisfied in the hotel case, though the circumstances were such that they did not point to negligence on the part of the defendants. No hard and fast tests can be laid down, for it is clear that the inference to be drawn will vary so much from one case to another and may change as an activity becomes more common and more familiar. For example, there was probably a time when the Court would have refused to apply the doctrine to aircraft flight but the fact that air travel is nowadays the safest means of transportation would justify its application. Similarly, it can be applied to medicine and surgery. As it was put in one case, the plaintiff should be able to say, "I went into hospital to be cured of two stiff fingers, I have come out with four stiff fingers, and my hand is useless. That should not have happened if due care had been used. Explain it if you can." "The real difficulties of 'res ipsa loquitur' arise when we try to determine its procedural effect. Logically, once it has been brought into play by satisfaction of the above conditions, it may have one of three effects, bearing in mind that the civil standard of proof is the balance of probabilities, "more likely than not". First, it may justify the finder of faction coming to a decision in favour of the plaintiff but in no way compel him to do so; the maxim merely expresses the inference that may be drawn from certain sorts of circumstantial evidence and the strength of that inference is one for the fact-finder's judgment. On this view, subject to a point made below, a decision for the defendant is unappeasable. On this view, subject to a point made below, a decision for the defendant is unappeasable. Though, this is in some ways the most attractive view of the maxim's effect it must be admitted that it is more suitable for a system or trial by jury, in which the Judge in deciding that the maxim applies is in effect saying that there is sufficient evidence to got the jury; there is something odd, in a non-jury trial, in the idea of the Judge deciding that the maxim applies (i.e. that the accident is one which could not normally happen without negligence) and then, in the absence of countervailing evidence, finding for the defendant. The second possible effect is that the maxim creates a presumption of negligence. The effect of this would be that if the defendant came forward with no evidence of an innocent explanation the finder of fact would be required to find for the plaintiff. If, however, the defendant does adduce evidence, then the weight of that may or may not rebut the initial inference of negligence raised by the maxim. But even in this situation, the ultimate issue is whether the whole of the evidence justifies the conclusion that it is more likely than not that the defendant was negligent. It is as if the initial application of the maxim tipped the scales in the plaintiff's favour and the defendant's evidence is argued to have the effect of tipping them back into a neutral position. Thirdly, the application of the maxim may create a situation in which the ultimate onus of proof is shifted to the defendant and he is required to produce an explanation which makes it more likely that not that there was no negligence on his part. On this view, if the Court is left in doubt on the totality of the evidence the plaintiff wins. The overwhelming weight of authority in the United States (where trial by jury is very common) is that the effect of 'res ipsa loquitur' is the first of the above, and the law is the same in Australia. To this must be added one qualification, that there are some cases in which the circumstantial evidence of the accident's happening shouts negligence so loudly that in the absence of rebutting evidence a verdict for the defendant would be perverse. To this must be added one qualification, that there are some cases in which the circumstantial evidence of the accident's happening shouts negligence so loudly that in the absence of rebutting evidence a verdict for the defendant would be perverse. An example might be a head-on collision of two trains belonging to the same company. In such a case, the practical effect of the maxim would be the same as that under the second explanation, though not because it raised a genuine presumption, simply because inferences from circumstantial evidence may sometimes be as overwhelming as the weight of direct testimony. The present stance of the English Courts is rather unclear and dicta can certainly be found to the effect that the maxim has the effect of reversing the legal burden of proof, but there are others denying that it raises any special rule of law. It is probably now too late to bury the maxim and to recognize that there are simply varying inferences to be drawn from circumstantial evidence from one case to another, but questions of the formal burden of proof are rarely important in trial by Judge alone. Sometimes, the onus of proof is truly reversed by statute or some rule of common law. For example, legislation in Ontario requires a driver in collision with pedestrian to prove that he was not negligent, and at common law, a bailee though he is only liable, in the absence of a special contract, for negligence, must show that the loss of or damage to goods in his care was not attributable to fault on his part." 10. The Division Bench of Gujrat High Court in the case of Gujrat State Road Transport Corporation itself has observed that when there is head on collision between two vehicles and it was difficult to distinguish the degree of negligence and in absence of any precise, clear and consistent evidence, the driver of each vehicle will ordinarily be held equally accountable. Nonetheless when there is contrary evidence on record indicating larger extent of negligence on the part of a driver of a particular vehicle in a given fact situation, apportionment of negligence accordingly, can be made. It may happen in a given case that liability of particular driver even in a case of head-on collision in broad day-light also is probable because the sole negligence of me driver of one of the vehicles. It may happen in a given case that liability of particular driver even in a case of head-on collision in broad day-light also is probable because the sole negligence of me driver of one of the vehicles. The cause of tort or the accident based on tort may be on account of sole and sheer negligence on the part of such a driver. 11. In the present case, from the perusal of record, it can safely be said that driver of the tractor was guilty for the accident, so in my opinion learned Tribunal has rightly held the appellant Insurance Company liable to pay the compensation. 12. Now, let me examine whether there is any role of trolley in the present case. From the perusal of paper no. 50Ga/7, it clearly transpires that the bricks were taken for repair of tube well boring. Whereas the appellant Insurance Company has not produced any document to prove that it was used for commercial purpose. Even otherwise, in the present case, it was a case of head on collision, tractor hit the Bolero jeep by coming on the wrong side, therefore, trolley of the tractor has no role to play in the present case. It is not the case of the appellant Insurance Company that accident was occurred due to hitting of trolley with Bolero jeep. 13. There was no eye witness of the accident except one Shakir Hussain – injured, who himself has filed claim petition. He has categorically stated that he was sitting on the front seat of the Bolero; Driver of the tractor was driving the tractor rashly and negligently and coming on wrong side, tractor hit the Bolero. When accident was occurred, there was no eye witness on the site and it was dark. 14. From perusal of the record, it clearly transpires that driver of the tractor Hompal was having valid driving license on the date of incident and this fact was proved DW Sharad Ranjan Dixit, License Clerk. 15. From the above discussion, it can safely be said that accident occurred due to rash and negligent driving of driver of tractor. Tractor was insured with the appellant Insurance Company and there was no breach of insurance policy. I do not find any illegality or infirmity in the judgments impugned under appeal. Consequently, all the appeals fail and are hereby dismissed with costs of Rs. Tractor was insured with the appellant Insurance Company and there was no breach of insurance policy. I do not find any illegality or infirmity in the judgments impugned under appeal. Consequently, all the appeals fail and are hereby dismissed with costs of Rs. 1000/- in each appeal. 16. Amount, if any, deposited by the appellant Insurance Company, adjusting the amount released by this Court, be remitted to the Tribunal concerned along with statutory amount for payment to the claimants within two months from today. 17. Let copy of this judgment be placed in each connected appeal and lower court record be sent back forthwith.