The burden of proof in motor accident claim cases and the need for liberal consideration of evidence.

JUDGMENT :

1. The present First Appeal is preferred by the Original Claimant-Hardasbhai Raymalbhai Gohil under Section 173 of the Motor Vehicles Act, 1988, by being aggrieved and dissatisfied with the judgment and award passed in Motor Accident Claim Petition No.22 of 2010 by the Motor Accident Claims Tribunal (Auxiliary), Dhrangadhra dated 28th November, 2014, by which the Tribunal has dismissed the Claim Petition.

2. The brief facts of the case are as such that, on 26.09.2009, at about 10:00 hours claimant was riding his motorcycle in moderate speed on the right side of the road going to Halvad. When he reached near Maliya Four road, at that time, the Opponent No.2 came with his Santro car bearing registration number GJ-12-P-8428 with full speed and in rash and negligent manner and collided with the claimant. The Claimant had fallen down and received grievous and serious injuries. Therefore, the claimant has filed the Claim Petition to get compensation of Rs.11,00,000/- as he was earning Rs.1,50,000/- from his agricultural work.

3. The Tribunal has issued notices to the opponents. The Opponent Nos.1 & 2 have not filed their reply. The Opponent No.3 has appeared and filed written statement at Exh.19 wherein it has denied averments. Thereafter, the Tribunal has framed issues for its determination. The Claimant-Hardasbhai Raymalbhai Gohil has been examined at Exh.17, Babubhai Raymalbhai Gohil at Exh.22 and Savsibhai Keshabhai at Exh.23, who are also cross-examined by the rival advocate. The documentary evidence is also produced on the record; like photo copy of F.I.R. at Mark 6/1, copy of punchnama at Mark 6/2, copy of statement of witness at Mark 6/3, copy of injury at Mark 6/4, copy of charge-sheet at Mark 6/5, copy of R.C. Book at Mark 6/6, copy of driving license at Mark 6/7, copy of insurance policy at Mark 6/8, copy of disability certificate at Mark 13/1, copy of Disablement Certificate at Mark 16/1, copy of discharge card at Mark 16/3, copy of medical certificate at Mark 16/4, copy of city brain report at Mark 16/8 etc. The Tribunal has thereafter heard arguments of the respective parties and dismissed the claim petition by holding that it appears that the victim was admitted on 29.09.2009 and the accident occurred on 26.9.2009. Therefore, a question arises where he was between the dates of 26.09.2009 to 29.09.2009 and on relying on the deposition of witness at Exh.23 that he has no personal knowledge about the accident. Therefore, the Tribunal has found that there is delay in filing F.I.R. of 27 days which is not satisfactorily explained. Therefore, the Tribunal has considered that there is no involvement of above stated vehicle by the claimant. Being aggrieved with this finding, the claimant has preferred the present appeal.

4. Learned advocate Mr. Vishal Mehta appearing for learned advocate Mr. Mehul S. Shah submitted that the Tribunal has committed gross error in not following the judgment cited at the bar though the Tribunal has recorded the judgment in Paras 16 and 17 cited by the rival parties, but the Tribunal has not properly considered those judgments. He has further submitted that if Para 16 of the judgment considered then the Tribunal has noted that the principle of res-judicata cannot be applicable in the present case as at the time of deciding NFL Application, the question of involvement of vehicle raised by the Insurance Company. But at that stage, the Tribunal was not agreed with the submissions of the Insurance Company but during the trial, sufficient evidences have come on the point of involvement of vehicle. Therefore, the Tribunal has opined that res-judicata would not be applied on the facts of the present case. On perusing the second citation, the Tribunal has found that there is a case of evidence of two eye-witnesses, moreover, there were reasons to file complaint in delay here in the present case in cross-examination of the witnesses evidence are not come on record regarding the number of involvement