JUDGMENT : HANCHATE SANJEEVKUMAR, J. 1. The present appeal is filed by the appellant-Insurance Company challenging the judgment and award dated 27.04.2015 in MVC No. 364/2010 passed by I Addl. Senior Civil Judge and MACT-V, Davanagere, questioning the liability and also for seeking reduction of quantum of compensation. 2. Brief facts of the case are that, on 12.01.2010 deceased-Dadapeer was travelling in Tata Safari bearing No. KA-34/M-5439 from Shimoga to Davanagere. At about 3.30 p.m. when the said vehicle was proceeding on Honnali Road near lake Bedara Hosahalli, at that time, respondent No. 1 being the driver of Tata Safari drove the same in a rash and negligent manner and dashed against the road side tree and thereby caused the accident. In the said accident, the deceased Dadapeer sustained grievous injuries to the vital parts of the body and died at the spot. 3. Heard the arguments from both sides and perused the records. 4. Learned counsel for the appellant-Insurance Company submitted that the accident was occurred on 12.01.2010, but not by rash and negligent driving by the driver of Tata Safari vehicle, but due to mechanical defect as revealed in Ex.P4-IMV report. It is submitted that respondent No. 8-owner of Tata Safari knew the fact that the vehicle was having defect, in spite of it, the owner did not rectify/remove the defects in the vehicle resulting into occurrence of accident. Therefore, the Insurance Company is not liable to pay the compensation, but the owner is liable pay the compensation to the claimants. Therefore, it is sum and substance of argument of the learned counsel for the appellant-Insurance Company that respondent No. 8/owner knew that the vehicle was having mechanical defect of gear box and steering and in spite of having knowledge that the vehicle is having mechanical defect allowed the driver to drive the vehicle. Hence, the owner of Tata Safari is liable to pay compensation, but not the Insurance Company. 5. Learned counsel for the appellant-Insurance Company placed reliance on Ex.P4-IMV report, in which, the observation made by the Motor Vehicle Inspector is that “at times” is mentioned, which means that previous to the date of the accident, there was mechanical defect occurred, but did not attend the same. 5. Learned counsel for the appellant-Insurance Company placed reliance on Ex.P4-IMV report, in which, the observation made by the Motor Vehicle Inspector is that “at times” is mentioned, which means that previous to the date of the accident, there was mechanical defect occurred, but did not attend the same. Therefore, this word denotes that the owner was having the knowledge regarding the mechanical defect, but did not carry out the repair and allowed the driver to drive the vehicle and thus, resulted into occurrence of accident. Therefore, submitted that the owner is liable to pay the compensation to the claimants, but not the Insurance Company. Therefore, prays to allow the appeal by fastening the liability on respondent No. 8/owner of Tata Safari. 6. On the other hand, learned counsel for respondent Nos. 7 and 8/driver and owner of Tata safari submitted that the owner did not know that there was mechanical defects in the vehicle, but the defects was first time occurred at the time of the accident, since the steering of the vehicle did not respond to the gear box. Therefore, submitted that the owner did not know that there was mechanical defect in the vehicle. Hence, the Insurance Company is liable to pay the compensation to the claimants. 7. Learned counsel for respondent Nos. 1 to 6/claimants has endorsed the argument canvassed by the learned counsel for respondent No. 8/owner. 8. The learned counsel for the appellant-Insurance Company placed reliance on the judgment of the Hon’ble Supreme Court in the case of Minu B. Mehta and Another vs. Balkrishna Ramachandra Nayan and Another, AIR 1977 SC 1248 . Therefore, it is the contention urged by the learned counsel for the appellant-Insurance Company that if the owner knew that there is mechanical defect in the vehicle and in spite of that allowing the vehicle to run, then amounts to negligence on the part of the owner and the owner is liable to pay the compensation. This is the ratio laid down in the above stated judgment. 9. The Hon’ble Supreme Court in the above said judgment were pleased to observe at paragraph Nos. 13 and 14 as under: “13. In order to sustain a plea that the accident was due to the mechanical defect the owners must raise a plea that the defect was latent and not discoverable by the use of reasonable care. 9. The Hon’ble Supreme Court in the above said judgment were pleased to observe at paragraph Nos. 13 and 14 as under: “13. In order to sustain a plea that the accident was due to the mechanical defect the owners must raise a plea that the defect was latent and not discoverable by the use of reasonable care. The owner is not liable if the accident is due to a latent defect which is not discoverable by reasonable care. The law on this subject has been laid down in Henderson vs. Henry E. Jenkins and Sons. In that case the lorry driver applied the brakes of the lorry on a steep hill but they failed to operate. As a result the lorry struck and killed a man who was emerging from a parked vehicle. The defence was that brake failure was due to a latent defect not discoverable by reasonable care on driver's part. It was found that the lorry was five years old and had done at least 150,000 miles. The brakes were hydraulically operated. It was also found after the accident that the brake failure was due to a steel pipe bursting from .7mm. to .1mm. The corrosion had occurred where it could not be seen except by removing the pipe completely from the vehicle and this had never been done. Expert evidence showed that it was not a normal precaution to do this if, as was the case, the visible parts of the pipe were not corroded. The corrosion was unusual and unexplained. An expert witness said it must have been due to chemical action of some kind such as exposure to salt from the roads in winter or on journeys near the sea. The House of Lords held that the burden of proof which lay on the defendants to show that they had taken all reasonable care had been discharged. The defect remained undiscovered despite due care As the evidence had shown that something unusual had happened to cause this corrosion it was necessary for the defendants to show that they neither know nor ought to have known of any unusual occurrence to cause the breakdown. [See Bingham's Motor Claims Cases Seventh Ed. p. 219]. 14. The defect remained undiscovered despite due care As the evidence had shown that something unusual had happened to cause this corrosion it was necessary for the defendants to show that they neither know nor ought to have known of any unusual occurrence to cause the breakdown. [See Bingham's Motor Claims Cases Seventh Ed. p. 219]. 14. The burden of proving that the accident was due to a mechanical defect is on the owners and it is their duty to show that they had taken all reasonable care and that despite such care the defect remained hidden. In this case in the written statement all that is pleaded is that the axle brake ring of the lorry came out and the driver lost control of the motor lorry and that the defect can develop in a running vehicle resulting in the driver's losing control of the steering wheel. Though it was stated that all precautions were taken-to keep the lorry in a road worthy condition it was not specifically pleaded that the defect i.e. the axle brake ring coming out, is a latent pleaded and could not have been discovered by the use of reasonable care. This lack of plea is in addition to the lack of evidence and the fact that the defence set up has been rightly rejected by the Tribunal.” 10. Ex.P4 is the IMV report, in which, the Inspector of motor Vehicles, RTO, Shivamogga, observed at Column No. 11 as below: “I am of the opinion that this accident has been caused due to the failure of the power unit of steering system at times, when the MV is at top gear, but in lower speed the power unit does not respond appropriately to the trudge of steering wheel.” 11. In the said observation, the Motor Vehicle Inspector had observed that as per his opinion the accident was caused when the motor vehicle is at top gear, but in lower speed. The power unit does not respond appropriately to the trudge of steering wheels. Therefore, it is observed that due to mechanical defects, the accident was caused. This observation of Motor Vehicle Inspector shows that previous to the accident, whether there was repeated mechanical defects found and did not carry out the same is not forthcoming in the said report. The word used is “at times” in the said observation. Therefore, it is observed that due to mechanical defects, the accident was caused. This observation of Motor Vehicle Inspector shows that previous to the accident, whether there was repeated mechanical defects found and did not carry out the same is not forthcoming in the said report. The word used is “at times” in the said observation. The Insurance Company contended that, since the Motor Vehicle Inspector had observed by using the word “at times” it means at the earlier point of time, there was mechanical defect found, but the owner did not attend the same. Therefore, the owner is negligent. But in what context, the Motor Vehicle Inspector has used the said term “at times” can be inferred, whether it means that the owner knew that there was lapse on the part of the owner to remove the mechanical defect, but it is not found in the said report that previous to the accident, there was defects found repeatedly and due to non-attending of such defect, the accident was caused. The owner can be said to be negligent in attending the vehicle only when the defect is mechanical defect is discoverable and if the owner had not attended, then the owner can be said to be negligent, but where the mechanical defect is not discoverable and it is hidden and latent and revealed after the accident, then the owner cannot be said to be negligent. 12. Therefore, in the present case, upon considering the observations made by the Motor Vehicle Inspector that the accident was caused due to mechanical defect is when the motor vehicle is at the top gear, but in lower speed the power unit does not respond appropriately which means the defect is hidden and latent. The said defect could not be said within the knowledge of the owner, where due to mechanical defect, the accident was caused and only on such happening, if it is discoverable while using the vehicle for the first time, then the owner cannot be said that he is negligent. Therefore, it cannot be said that the owner knew the mechanical defect, but did not attend the same. Therefore, it cannot be said that the owner knew the mechanical defect, but did not attend the same. There is no observation by the Motor Vehicle Inspector in Ex.P4-IMV Report that previous to the accident, there was repeated defects found and did not attend the same and also there is no observations that had the owner attended the defect then the accident would not have been occurred. Therefore, there is no such observation by the Motor Vehicle Inspector in Ex.P4-IMV Report. Therefore, when the mechanical defect is found in hidden and latent position, the owner cannot be said that he was negligent. Under these circumstances, if the accident is caused due to mechanical defect, then the Insurance Company is liable to pay compensation by indemnifying the owner as per the terms of contract of insurance policy. 13. Also, the driver of Tata Safari is not charge sheeted because after the investigation the police have filed B report, since no rash and negligence aspect is proved on the part of the driver, but accident is proved due to mechanical defect. If the owner had attended the mechanical defect, then the accident would have been avoided. Therefore, even during police investigation also, there is no such finding by the police. Therefore, under these circumstances, when the case is considered as above stated, there is no proof that the owner was negligent while attending the mechanical defect. Hence, the Tribunal is correct in fastening the liability on the appellant-Insurance Company. Therefore, the appeal is found to be devoid of merit. 14. The quantum of compensation granted by the Tribunal is perused. On perusal of the judgment of the Tribunal, it reveals that, even though, the Tribunal has considered the lesser monthly income, but that is not challenged by the claimant. Therefore, over all compensation granted by the Tribunal is found to be just and proper. Hence, on the quantum of compensation also, the judgment and award of the Tribunal is confirmed. Therefore, the appeal filed by the Insurance Company is liable to be dismissed on the quantum also. Therefore, the appeal deserves to be dismissed. 15. Hence, I proceed to pass the following: ORDER: (i) The appeal is dismissed. (ii) The impugned judgment and award dated 27.04.2015 in MVC No. 364/2010 passed by I Addl. Senior Civil Judge and MACT-V, Davanagere, is hereby confirmed. (iii) No order as to costs. Therefore, the appeal deserves to be dismissed. 15. Hence, I proceed to pass the following: ORDER: (i) The appeal is dismissed. (ii) The impugned judgment and award dated 27.04.2015 in MVC No. 364/2010 passed by I Addl. Senior Civil Judge and MACT-V, Davanagere, is hereby confirmed. (iii) No order as to costs. (iv) The amount deposited by the appellant-Insurance Company shall be transmitted to the Tribunal. (v) Registry is directed to transmit the TCR along with copy of this order to the Tribunal forthwith.