In a composite accident involving two vehicles, where the evidence of the sole eyewitness is disbelieved, the doctrine of res ipsa loquitur should be applied to infer negligence on the part of the driver of the other vehicle, particularly when the driver of the other vehicle is not produced as a witness.

( 1 ) WHILE considering the appellant's application for final disposal of the appeal, the appeal itself was taken up for hearing on consent of the parties.

( 2 ) THE appellants herein filed a claim against the respondents/opposite parties under section 166 of the Motor Vehicles Act, 1988, before the Motor Accident Claims Tribunal, Burdwan, being M. A. C. Case No. 85/56 of 1996, on account of the death of one Bikash Gupta, the husband of the appellant No. 1, in an accident involving two motor vehicles on 4th December, 1995, at about 7. 30 p. m. , near the Saktigarh Cold Storage. A police case, being Burdwan P. S. Case No. 763 of 1995, dated 4th December, 1995, was also started in respect of the said incident under sections 279/304a Indian Penal Code on the basis of a First Information Report lodged by one Ashoke Dey.

( 3 ) ACCORDING to the appellants, on 4th December, 1995, at about 7. 30 p. m. while the deceased was driving truck No. W. B. I. 5221 coming from Burdwan another truck bearing No. WGA-5205 coming from Calcutta dashed against the truck of the deceased who died on the spot. The accident being composite in nature, the claim was made against the owners and insurers of both the vehicles. Both the insurers resisted the claim and filed separate written statements denying the allegations of rash driving and contending that the accident took place due to the fault of the deceased and that the claim was, therefore, liable to be rejected.

( 4 ) WHILE the appellant No. 1 was examined as P. W. 1, one Siraj Mallick (P. W. 2) was examined as an eye witness to the accident. In his evidence he has stated that on 4th December, 1995, at about 7. 30 p. m. while the deceased, Bikash Gupta, was driving his truck bearing No. W. B. I. 5221 towards Calcutta near the Saktigarh Cold Storage, another lorry bearing No. W. G. A. 5205 coming from Calcutta dashed against the truck of the deceased as a result whereof Bikash Gupta died on the spot. He stated that he knew the deceased from before and that he had witnessed the accident. His evidence was, however, disbelieved as he also stated that after the accident he found that the driver of truck No. W. B. I.-5221 had died on the spot. The latter part of his evidence led the Tribunal to hold that P. W. 2 had not seen the accident.

( 5 ) P. W. 3, Prasanta Kr. Gupta is the owner of truck No. W. B. I. 5221 and has only disclosed the income of the deceased Bikash Gupta.

( 6 ) EXCEPT for the driving licence of the deceased, Bikash Gupta, (Exhibit 1), no other document was produced on behalf of the appellants. The learned Tribunal came to the conclusion that rash and negligent driving on behalf of the driver of truck No. W. G. A.-5205 had not been proved and dismissed the appellant's petition under section 166 of the Motor Vehicles Act, 1988.

( 7 ) THE Claimants have preferred this Appeal against the judgment and order passed by the learned Judge, Motor Accident Claims Tribunal, 4th Court, Burdwan, on 7th December, 1999, dismissing their claim.

( 8 ) APPEARING in support of the Appeal, Mr. Krishanu Banik submitted that the learned Tribunal had erred in disbelieving the evidence of Siraj Mallick as an eye-witness merely because he had stated that he had seen Bikash Gupta dead after the accident. Mr. Banik urged that even if the learned Tribunal had chosen not to believe the evidence of the sole eye-witness, P. W. 2, Siraj Mallick, it should have applied the doctrine of res ipsa loquitur to the facts of the case instead of dismissing the appellants claim out right.

( 9 ) MR. Banik submitted that there was no dispute that Bikash Gupta had died on account of the accident in which his truck and truck No. W. G. A. 5205 was involved. Hence, even if, the evidence of Siraj Mallick was discarded, the facts relating to the accident would speak for themselves, since insistence of proof of rash and negligent driving causes considerable hardship to the claimants who were not eye-witnesses to the