HIGHCOURTOF CHHATTISGARH : BILASPUR ;.,;». v& DIVISION BENCH: HON'BLE SHRI T.P.SHARMA AND HON'BLE SHRI R.L.JHANWAR, JJ. APPLICANTS/ APPELLANTS M.A.(C) No. 890 of 2009 1. Smt. Bhuri Bai, Wd/o Banvali Tandan, aged about 31 years. 2. Ku. Savita D/o late Banvali Tandan, aged about 14 years. 3. Ashwani S/o Late Banvali Tandan, aged about 11 years. 4. Ku. Rangeeta, D/o Late Banvali Tandan, aged about 7 years. 5. Ashok s/o Late Banvali Tandan, aged about 05 years. 6. Kaushii/a w/o Ratan Tandan, aged about 65 years. 7. Ratan s/o Sudhuwa Tandan, aged about 70 years. Appellants No.2 to 5 being minors represented through mother Smt. Bhuri Bai. All r/o village Barbaspur, P.S. & Tahsil Kawardha, District Kabirdham (C.G.) VERSUS 1. Naresh Kumar s/o Guljari Mehra, aged about 45 years. 2. Gurucharan Singh s/o Raghuveer Singh Golchha, aged about 56 years. Both R/o 0/002 Golchha Park, New Puraina Raipur (C.G.) 3. The Oriental Insurance Company Limited, through its Branch Manager, Branch No.2, Madina Manjil, Jail Road, Raipur(C.G.) MIS.APPEAL UNDER SECTION 173 OF THE WIQTOR VEHICLES ACT, 1988 Shri A.L. Singhraul, counsel for the appellants. None for respondents No. 1 &2. Shri Prasenjit Dutta, counsel for respondent No.3. RESPONDENTS DRIVER OWNER INSURER ORAL ORDER (Passedon 19.07.2010) The following oral order of the Court was delivered by T.^.Sharma, J. ^v^SiSK?^.^ ^w:-^ •'^ s citig^ g L 4, ~S / '%^.-^is'^ <5 By this appeal, the appellants have challenged the legality and propriety of the award dated 05.03.2009 passed by the Motor Accidents Claims Tribunal, Kabirdham (Kawardha) (in short 'the Tribunal') in Claim Case No. 04/2008 whereby the learned Tribunal has dismissed the claim petition on the ground that the appellants have failed to establish the fact that number of offending vehicle was C.G. 04 JA 01 58. 2. Brief facts of the case are that on 22.06.2007 at 11.00 p.m. the deceased Banvali was travelling in one Bus. On account of mechanic failure, Banvali along with other passengers was standing on the road. At that time, one truck bearing registration No. C.G. 07 E 2226, which was being driven by its driver (respondent No.1) rashly and negligently, caused injury to Banvali Satnami, Narad and Hariram and ran away from the spot. They went Kawardha by bus where Hariram lodged the report vide Ex.A.2 in which number of offending vehicle was mentioned as C.G.07 E 2226. On the basis of Ex.A.2, Ex.A.3 F.1.R. was recorded. During the course of travelling to Kawardha, Banvali died. Merg was recorded vide Ex.A.4. Autopsy was conducted. During the course of investigation, it was found that truck No.C.G. 04 JA 0158 has caused accident and not by truck No.C.G. 07 E 2226. 3. Legal representatives of Banvali have filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act') for award of compensation of Rs.27,50.000/- against the respondents on the ground that at the time of accident, the offending truck was driven by respondent No.1 - Naresh Kumar, owned by Gurucharan Singh and insured by respondent No.3 - The Oriental Insurance Company Limited. The respondent No.3 has denied the claim of the appellants and has specifically pleaded that the number of offending truck was C.G. 07 E 2226 and not C.G. 04 JA 0518, therefore, the owner and insurance company of truck No.C.G.04 JA 0518 are not liable for payment of any compensation. 4. After affording opportunity and hearing the parties, the learned Tribunal has dismissed the claim petition on the ground that the appellants have failed to prove the number of offending vehicle as C.G. 04 JA 0518 and liability of respondents to pay compensation. /f-"^.v^ s ^ ,'s.. 3 5. Shri A.L. Singraul, learned counsel for the appellants and Shri Prasenjit Dutta, learned counsel for respondent No.3 are heard. The award impugned and record of court below is perused. 6. Counsel for the appellant vehemently argued that the provisions relating to claim in the Act are beneficial legislation and the Courts are required to take liberal approach in deciding the claim to award the compensation in realistic manner. In the present case, the evidence of Hariram P.W.2 who has lodged the report clearly reveals that number of truck of offending truck C.G. 04 JA 0518 and not C.G. 07 E 2226 but the Tribunal has not relied on the statement of P.W.2 Hariram corroborated by the evidence of Narad P.W.3. 7. Counsel for the appellant placed reliance in the matter of Bimla Devi & Ors. V. Himachal Road Transport Corpn. & Ors., 2009 AIR SCW 4298, Durga Bai And Others v. Anand Kumar And Others, 2006 (II) D.M.P 282 (M.P.), Premlata Shukla and others v. Sitaram Rai and others, 2006 ACJ 1081 and Shiv Kumar & Others v. Prithvipal Singh & Another, 2006 (3) C.G.L.J. 325 in which it has been held that while deciding the claim petition and the fact of causing accident by particular vehicle, strict proof is not required. The claimants are required to establish their case merely on the touch stone of preponderance of probabilities and standard of proof beyond reasonable doubt could not be affected. In the aforesaid cases, it has been further held that to establish the fact that particular vehicle has caused accident, the appellant may take support of surrounding circumstances and evidence like proof of vehicle mentioned in the F.1.R., persons who have seen the accident and their evidence and evidence of investigating officer who has investigated the offence. 8. On the other hand, learned counsel for respondent No.3 opposed and submitted that in the present case the appellants have utterly failed to prove the fact that truck number of vehicle was C.G. 04 JA 0518, therefore, the present respondent is not liable for payment of any compensation on account of motor accident. 9. In order to appreciate the arguments advanced on behalf of the parties, we have examined the material available on record. In the ^' f2l- ^t present case, the appellants have examined Hariram and injured witness Narad, who has deposed that he was present at the time of accident. The truck No.C.G.04 JA 0518 caused such accident resulting into death of Banvali. He has specifically deposed in paragraph 2 of his cross- examination that at the time of lodging F.1.R. he has told the police the number of vehicle as C.G. 04 JA 0518 and not C.G. 07 E 2226. A.W.3 Narad, who was accompanying A.W.2 hlariram, stated something. In the present case, some truck No. C.G.07 E 2226 has been mentioned in the F.1.R. Ex.A.2 at the instance of A.W.2 Hariram but during the course of investigation, the officer arrived at a conclusion that number of offending truck was C.G. 04 JA 0518. Evidence ofA.W.2 Hariram and A.W.3 Narad is contradictory evidence and not safe rely upon. 10. In this case, to unfold the real controversy the investigating officer and any person who has seen the vehicle and person who has registered F.1.R. were substantive witnesses for this case. But the reasons best know to the appellants, the appellants havenot examined those witnesses to unfold the real story. After lapse of 6 months of the accident, charge sheet against present respondent No.1 has been filed. In Bimla Devi & Ors. V. Himachal Road Transport Corpn. & Ors., 2009 AIR SCW 4298, Durga Bai And Others v. Anand Kumar And Others, 2006 (II) D.M.P 282 (M.P.), Premlata Shukla and others v. Sitaram Rai and others, 2006 ACJ 1081 and Shiv Kumar & Others v. PrithvipalSingh & Another, 2006 (3) C.G.L.J. 325 it has been held that in case of award of compensation under Motor Vehicle Act, the Court is required to take liberal approach in deciding the case and deciding the identify of offending vehicle. In those cases, on the basis of other circumstances identify of vehicle was established. In the present case, the appellants have not examined the investigating officer, who has filed the charge sheet against present respondent No.1 and other key witnesses in support of the claim that the offending truck was driving by respondent No.1. The facts of aforesaid citations are distinguishable on the grounds offacts. 11. In the present case, the burden was on the appellants to prove the factum of accident by the truck dnven by respondent No.1 but the appellants have failed to discharge their burden to prove the aforesaid facts and in the absence of such proof, the learned Tribunal has dismissed the claim. ^r '~~.s. "?•• • :^cy^^ 2-) € 12. On close scrutiny of the entire evidence available on record, we are of the considered view that the learned Tribunal has not committed any illegality while dismissing the claim petition. 13. Consequently, the appeal being devoid of merit is liable to be and is hereby dismissed. No order as to costs. Sd/- sd/- i R-E.Jhanwar '•TaT' - Judse"