Pandurang Tejrao Bhoyar vs Bramhaiah

S.B. Shukre, J.—Though in pursuance of the order passed on 25th July, 2013, notice was issued for final hearing, today, none appears for the respondent No.1 and 2, the driver and the owner of the alleged offending truck.

Heard Mrs. S.M. Saware, learned counsel for the appellant and Mr. K.V. Kotwal, learned counsel for the respondent No.3. Since the respondents are already served with notice regarding final disposal of the matter, this appeal is being taken up for final disposal at the admission stage.

Heard. Admit.

This is a hit and run case in which the appellant, who was riding a motorcycle bearing registration No. MH-29-K-6976 together with his sister as a pillion rider and proceeding from Muktapur to Takali on the motorcycle on 20th July, 2005, was dashed against by a speeding truck. The accident resulted in sustaining of grievous injuries by the applicant and his sister. According to the appellant, he could note down the registration number of the truck which was AP-26-W-2499. He felt that the accident had occurred only due to rash and negligent driving of this truck and therefore, he preferred a claim petition under Section 166 of the Motor Vehicles Act, 1988 (in short, "the M.V. Act") against the driver, owner and insurer of the truck, who are respondents herein.

The respondent Nos.1 and 2, the driver and the owner of the truck were proceeded against exparte, whereas respondent No.3, the insurer resisted the petition by contending that the said truck was not involved in the accident.

After considering the evidence available on record and arguments of the contesting parties, the Tribunal found that the accident occurred due to motorcycle being given a dash by some truck and that there was contributory negligence of the appellant in causing of the accident. Learned Tribunal further found that the identity of the truck could not be established and, therefore, the Tribunal dismissed the petition with costs by judgment and award passed on 15th September, 2011.

Not satisfied with the same, the appellant-claimant is before this Court in this appeal.

I have heard Mrs. S.M.Saware, learned counsel for the appellant and Mr. K.V.Kotwal, learned counsel for the respondent No.3. I have carefully gone through the impugned judgment and award.

Now, the only point which arises for my determination is :

Whether the appellant has established identity of the vehicle involved in the accident to be the truck bearing registration No.AP-26-W-2499 ?

Learned counsel for the appellant submits that it is well settled law that in proceedings filed under the provisions of the M.V. Act neither strict rules of evidence are applicable, nor strict standard of proof is required for proving the case of the claimant. She submits that the test of proof beyond reasonable doubt applicable to a criminal trial has no place in proceedings taken under the provisions of the M.V. Act and the standard of proof required in these cases is of preponderance of probabilities. For this submission, she places her reliance upon the cases of Bimla Devi and Others Vs. Himachal Road Transport Corporation and Others, , Kusum Lata and Others Vs. Satbir and Others, and New India Assurance Company Limited Vs. Smt. Sakshi Bhutani and others, MAC APP 550/2011, decided by the Delhi High Court on 2nd July, 2012.

It is the further contention of the learned counsel for the appellant that the driver and owner of the offending vehicle did not contest the petition and that the driver was also arrested by the Police, which fact has been considered by the Tribunal in giving a finding that the accident did occur, and that there was contributory negligence on the part of the rider of the motorcycle. But, she further submits, when it came to identity of the truck, the Tribunal did not consider these relevant facts and thus came to a wrong conclusion. She submits that in the F.I.R. (Exhibit-52) itself there is a clear cut mention of registration number of the truck and although there is some overwriting in recording the registration number, it cannot be understood as creating any doubt about mentioning of the correct registration number in the F.I.R. She submits that the Tribunal ought to have taken into consideration overall effect of evidence adduced by the petitioner, but it did not and, therefore, this is a fit case for making interference with the impugned judgment and award. In support, she places her reliance on the case of Laxmi Gontiya and Another Vs. Nand Lal Tahalramani and Others, .

Shri Kotwal, learned counsel for the respondent No.3 submits that when it was the contention of the appellant that the truck bearing registration No.AP-26-W-2499 was involved in the accident, it was for the appellant to prove that it was really involved in the accident. He submits that perusal of the F.I.R. itself shows that there are two registration numbers mentioned therein and when the Police Officer who recorded the F.I.R. was not examined by the claimant, now it cannot be ascertained as to which of those two numbers is correct. He also submits that there is also no other evidence adduced by the claimant to support his case and, therefore, the learned Member of the Tribunal has correctly found that identity of the vehicle has not been established. In support, he places his reliance upon Gulab Chand Dhot Vs. P.N. Aggarwal, .

Upon going through the impugned judgment and award and also evidence adduced by the parties, I find that the learned Member of the Tribunal has correctly appreciated the evidence and as such, I see no merit in the argument canvassed on behalf of the appellant.

So far as concerned the principle of law that in the proceeding initiated under the provisions of the M.V. Act, evidence is to be appreciated by applying the principle of preponderance of probabilities and the principle of proof beyond reasonable doubt has no place therein, there is no quarrel about it. There is also no dispute about the principle of law that in such cases, rules of evidence in their stricto sensu are not applicable.

The question, however, is as to whether there is some material brought on record by the appellant to enable the Court to come to a conclusion that the truck as contended by the appellant was indeed involved in the accident by application of principle of preponderance of probabilities or not. I must say, answer to this question has to be in the negative as one can see that there are two registration numbers of the truck allegedly involved in the accident, which are mentioned in the F.I.R. vide Exhibit-52. The first number which is mentioned is AP-26-W-6499 and the other number that is mentioned is AP-26-W-2499. Even in the charge sheet, two registration numbers have been mentioned. So, these documents, when taken at their face value, do not support the case of the appellant and leave a scope for further inquiry into the aspect of correct registration number of the truck involved in the accident. That inquiry would have been possible, had the officer who recorded F.I.R. been examined as a witness by the appellant. But, unfortunately he was not examined. Such inquiry would also have been possible if some other evidence had been led by the appellant so as to enable the Court to identify the vehicle involved in the accident by application of principle of preponderance of probabilities, as for instance, giving make of the truck, stating some relevant facts to identify the truck such as colour of the truck, overall appearance of the truck, some description of the driver and so on. Even such other evidence has not been adduced by the appellant and, therefore, I do not understand as to on what basis, the doubt created by the contents of the F.I.R. could have been said to have been cleared by the Tribunal. They were not cleared and, therefore, I see no illegality and no perversity in the conclusion recorded by the trial Court that identity of the truck has not been established.

It is true that the driver of the truck was arrested. But, that fact by itself would not be enough to say that the truck bearing registration No.AP-26-W-2499 was involved in the accident. There is no material available on record indicating that the driver of the truck had been convicted by the Criminal Court. Even if, trial of the driver had resulted in his acquittal, still the material facts which would have emerged on record of the Criminal Court, would have been required to be considered by the Tribunal in order to properly appreciate evidence in this case. Even those material facts assisting the Court in recording a correct finding as regards identity of the truck were not produced on record by the appellant.

As regards the contention that involvement of truck in accident and also arrest of the driver have been used by the Tribunal to find contributory negligence of the appellant, but these facts have not been accepted to support the contention that truck''s registration number is AP-26-W-2499, I would say, though this is partly true only as regards truck and not about the arrest of the driver, still no illegality could be seen in such an approach. Reason being that evidence on record discloses involvement of motorcycle of the appellant and one truck, but does not reasonably reveal the identity of the truck.

In fact, as submitted by the learned counsel for the respondent No.3, the appellant was already put on alert in this regard after Motor Accident Claim Petition No.30/2006 filed by the sister of the claimant, who was pillion rider of motorcycle involved in this case was dismissed by the Tribunal on 22nd November, 2010, about 10 months before decision was delivered in this case. In the case filed by the sister of the appellant, the Tribunal had recorded a similar finding. The Tribunal had found that identity of the truck was not established and there was no other evidence available to enable the Court to carry out the exercise of properly identifying the truck involved in the accident. These findings should have put the appellant on guard and he ought to have acted with greater care in this case, when the opportunity as well as time were in his favour. But, he wasted the opportunity as well as time which so mercifully had come his way. The appellant probably did not avail of the opportunity because he himself might not have been sure about the identity of the truck involved in the accident.

In the case of Laxmi Gontiya (supra), which was a hit and run case, a similar issue about identity of the vehicle involved in the accident was considered by the Division Bench of Madhya Pradesh High Court in the light of the evidence available on record. In that case, although registration number of the truck was not known, some eye witnesses were examined and they had deposed about colour of the vehicle, make of the vehicle and also description of the driver. On the basis of such evidence, the Division Bench, by applying the principles of preponderance of probabilities, found that identity of the truck was duly established.

The facts discussed earlier would themselves shows that the facts of the present case are distinguishable from the facts of Laxmi Gontiya in the sense that there is absolutely no other evidence brought on record by the appellant to assist the Court in giving its finding that the truck involved in the accident had a particular registration number and, therefore, said case of Laxmi Gontiya would not be of any help to the appellant. On the contrary, I would say, the case of Gulab Chand (supra), having almost similar facts can be pressed into service to find that the appellant failed to prove the identity of the truck. In that case, the F.I.R. mentioned different registered numbers of the vehicle involved in the accident and also did not give particulars of the driver. Eye witness who had reported the case to Police was not examined. Therefore, learned Single Judge of Delhi High Court found that identity of the vehicle involved in the accident was not proved and the claimant did not discharge the burden of proving involvement of the vehicle in the accident. Almost similar are the facts of this case and accordingly, I find that the appellant has failed to establish involvement of the vehicle in the accident.

Lastly, I must also deal with the contention that owner and driver of the truck in question did not contest the case of the appellant and, therefore, appellant''s case should be taken as proved against them. The argument being against well established principle of law that petitioner must first stand on his own legs before he is allowed to look for weakness of other party''s case needs to be rejected. The appellant has not even managed to stand on his own legs.

In the circumstances, no interference in the impugned judgment and award is warranted. There is no merit in this appeal and it deserves to be dismissed. The point is answered accordingly.

The appeal stands dismissed.

There shall be no order as to costs.