The need to appreciate evidence in motor vehicle accident claim cases upon the touchstone of probabilities and the principle that an admission or averment of fact in pleading, if not denied or traversed, would bind the party making it.

1. Heard learned counsel for the rival parties. The appeal is against the judgment and order dated 29-03-2011 passed by learned member, Motor accident claim Tribunal2 at Nagpur in Claim application no 605 of 2005 whereby the claim under Section 166 of the Motor Vehicles Act for sum of Rupees Fifteen Lakhs was dismissed.

2. Facts briefly mentioned are:

Mr Prakash Deorao Patil, aged 37 years, was travelling at Bina Tpoint from Bina Sangam by Motor Cycle bearing registration no. MH-31-AT-9769 on 07.01.2005 at about 7.30 p.m. on Road in front of Mahadeo Hedao’s field House. The Motor Tata Sumo bearing Registration No.MH-31-H-2770 gave forcible dash to the motorcycle from behind it. Prakash died as result of the accident. Owner of the offending motor vehicle did not dispute the involvement of the later mentioned Tata Sumo vehicle and fact of the accident (W.S. Exhibit 18 para No.2). The deceased left behind his dependents viz. widow Manisha aged 29 years, son Chaitanya aged 8 years and mother Smt Chandrabhagabai aged 63 years who are claimants of compensation in this case. The owner of the offending motor vehicle is Umakant Marotrao Kolhe and the insurer of the offending Motor vehicle is National Insurance Company through its Dhantoli branch, Nagpur. The compensation for death was claimed in the sum of Rs.20,65,000/-. The evidence consisted of widow of the deceased and an eye witness to the accident. No witness was examined on behalf of the Owner, driver and insurer. The Tribunal however dismissed the Claim application. In Claim Petition No.605 of 2005 learned Member of the Motor Accident Claims Tribunal-2, Nagpur recorded the evidence of claimant Smt. Manisha wd/o Prakash Patil. She deposed about the accident which occurred on 7.1.2005 at about 07:30 p.m. near village Beena within local limits of Khaperkheda Police Station, District Nagpur. According to her, when her husband Prakash was proceeding towards Beena T-Point from Beena Sangam by motorcycle bearing Registration No.MH-31/AT/9769, at that time Tata Sumo bearing Registration No.MH-31/H/2770 came from behind and gave forcible dash to the motorcycle as a result of which her husband was seriously injured and died on the spot. Manisha deposed that the accident occurred solely due to negligence on the part of driver Parasram Bhadang of Tata Sumo.

3. The Khaperkheda Police Station had submitted Form-AA (Exh.33), in respect of the accident, which indicates that Tata Sumo bearing Registration No.MH-31/H/2770 driven by Parasram Bhadang employed by Shri Umakant Marotrao Kolhe caused accident. The offending motor vehicle Tata Sumo was covered by insurance policy dated 7.2.2005 insured with National Insurance Company Limited, Nagpur covering the date of accident.

4. Thus, although initially the offence vide Crime No.2/05 was registered on 7.1.2005 at Khaperkheda Police Station under Sections 279, 337, 338, 304A and 427 of the Indian Penal code read with Sections 184 and 134 of the Motor Vehicles Act, 1988 by one Sunil Parasram Bhadang (son of driver Parasram), there appears suppression of fact not disclosing name of the driver and name of the owner of offending motor vehicle. However, it appears that the police inquiry revealed name of the owner of the offending motor vehicle as well as driver thereof. The insurance policy by the National Insurance Company Limited covering the date of accident was also revealed during the investigation by the police and when the charge sheet was filed under Section 173 of the Criminal Procedure Code it does appear from Exh.39 that driver Parasram Bhadang was prosecuted on account of his negligence and rashness in driving the said Tata Sumo vehicle. Thus, learned Member of the Tribunal failed to note this fact during the course of hearing of the claim petition.

5. Considering the material collected during the course of investigation and the charge sheet filed under Section 173 of the Criminal Procedure Code and Form-AA submitted by the police, the