In a motor vehicle accident case, the insurance company has the burden of proving that the vehicle was not involved in the accident and that the claim is false.

JUDGMENT :

SUBHENDU SAMANTA, J.

In Ref: CAN 4 of 2023

1. This is an application for amendment in respect of name and address of the appellants and also for recording the death of appellant No. 4. Heard the learned advocate, perused. The application being CAN 4 of 2023 is disposed of with a direction that the name and address of minor appellant No. 2 of the instant appeal be amended according to the table of paragraph 2 of the said application. The name of appellant No. 4 be struck out from the memo of the appeal as she has expired during the pendency of the appeal and the present appellants are the surviving legal heirs of the deceased.

2. The office is directed to carry out the said amendment within a fortnight.

3. The instant appeal is preferred against the judgment dated 15th day of September, 2010 passed by the learned Judge, Motor Accident Claims Tribunal, 3rd court, Paschim Medinipur in MAC Case No. 356 of 2006 under Section 166 of the M.V. Act.

4. The brief fact of the case is that the present appellants being the claimants preferred an application under Section 166 of the M.V. Act before the learned tribunal for getting compensation from the insurance company on the ground that the predecessor of the present appellant was died in a fateful road traffic accident due to the rash and negligent driving of the driver of the offending vehicle duly ensured under the respondent insurance company.

5. The joint owners of the offending vehicle did not contest the case before the learned tribunal and the case was heard ex-parte against them. The present respondent-insurance company contested the case by filing written statement. The claimant adduced 2 oral witness alongwith some documentary evidences. The insurance company has also adduced one witness as OPW-1. Some documents were also exhibited on behalf of the insurance company.

6. The learned tribunal after hearing both the parties and after perusing the evidence both oral and documentary dismissed the claim application. Hence this appeal.

7. Learned advocate for the appellants submitted before this court that the impugned award passed by the learned tribunal is palpably illegal in the eye of law; learned tribunal has not considered the materials and evidences regarding the fact of accident and came to an erroneous findings. Learned tribunal has also not considered the police papers regarding the alleged accident and thus there is a miscarriage of justice. Learned advocate for the appellant further argued that the evidence of PW-1 and PW-2 was not at all considered by the learned tribunal. The learned tribunal has considered only the evidence of OP-1 who is interested witness. He further argued that the finding of the learned tribunal regarding the non involvement offending vehicle is completely erroneous so he prayed for setting aside the impugned award.

8. Learned advocate appearing on behalf of the insurance company submitted before this court that an entire false story was created to get compensation from the insurance company. The alleged motor vehicle was not at all involved in the alleged accident. From the fact of the case, it would be evident that the deceased was fell into a ditch and sustained injury in his spine thereafter he was admitted to the several hospitals with the spinal injury. Nowhere, it was written in the medical papers that it was a road traffic accident. He submitted that the alleged date of accident was on 29th March, 2006. The FIR and the instant case were registered with the police station on 24th of April, 2006. There is no sufficient explanation in the case of the claimant that how such inordinate delay was caused in lodging FIR. The deceased may have suffered some spinal injuries but after he admitted to the different Hospitals; the claimants have created the cock-and-bull story of the alleged road traffic accident for getting compensation. There is no