The burden of proof in motor accident claims requires the claimant to establish the accident on the basis of preponderance of probabilities. Adverse inferences can be drawn from non-examination of key witnesses, and the principle of falsus in uno, falsus in omnibus does not apply in India.

1. - This appeal is directed against the award of the learned Judge, Motor Accident Claims Tribunal, Jaipur, dated 28.5.1992, by which learned Judge has dismissed the claim petition of the appellant.

2. The appeal is opposed on behalf of M/s. Swastik Automobiles, respondent No. 2. Respondent No. 1 - Surendra Kumar Malhotra, and respondent No. 3 - National Insurance Co. Ltd., Jaipur, have not appeared despite service of notices on them - Hence the appeal has been hard is their absence.

3. Briefly stated, case of the claimant is that he is a trained T.V. Engineer and is employed in the business of report of T.V. sets by going to the residences of the customers. On 7.12.1983, the claimant was going from his house in (sic) Nagar on a motorcycle, RSS.134. This was.at about 2.30 p.m. The claimant reached the road crossing near street No. 2 that respondent - Surendra Kumar Malhotra came from eastern side riding scooter RRM 8163. Surendra Kumar Malhotra was driving the Scooter at an excessive speed. He did not sound any horn and collided with the front wheel of the motor cycle of the claimant and did not stop and went towards Raja Park.i.e. in the western direction. The claimant fell down as a result of this accident, along with his motor cycle and sustained grievous injuries on his left thigh. He also sustained fractures. He had to undergo surgical operation at which a steel plate has to be fixed in his leg. He remained confined to bed for four months.

4. The case of the claimant was that the incident was witnessed-by AW 2, Shashi Kant and Ramesh (AW 3) who had taken him to the hospital soon after wards. He remained under treatment of Dr. Madhava Upadhyaya (AW 4). The claim was resisted before the learned Judge of the Tribunal by the respondent No. 3, National Insurance Co. and by respondent No.1 - Surendra Kumar Malhotra. Respondent No. 1 - Surendra Kumar Malhotra, in his reply, denied the story of accident altogether and pleaded that M/s. Swastik Automobile was owner of the Scooter in question viz. RRM 8163. It appears that the respondent No. 2-M/s. Swastik Automobiles did not filed any reply inspite of service and the learned Judge of the Tribunal proceeded ex-parte against M/s. Swastik Automobiles vide order dated 3.9.1987.

5. Learned Judge of the Tribunal framed due issues. The claimant examined himself and produced AW 2, AW 3, AW 4 & AW 5 in support of his claim: No evidence was led on behalf of the respondents.

6. Learned Judge of the Tribunal on the basis of the evidence adduced by the claimant arrived at a finding that the claimant had failed to prove that he met an accident at the hands of Surendra Kumar Malhotra due to rash and negligent driving of the Scooter RRM 8163. He was of the view that the claimant himself must have driven his motor cycle in a negligent manner. Upon such a finding, he dismissed the claim of N.K. Chopra. Aggrieved, N.K. Chopra has filed this appeal.

7. Shri G.K. Bharatia has appeared on behalf of the respondent No. 2-M/s. Swastik Automobiles, and has opposed this appeal. It is unfortunate that nobody has appeared on behalf of the respondent No. 1 - Surendra Kumar Malhotra, and respondent No. 3- National Insurance Co. Ltd., in spite of the service of the notice of this appeal.

8. Learned counsel for the appellant has contended that in this case, learned Judge of the Tribunal has seriously erred in law and facts in discarding evidence of the claimant which had proved in a specific manner that the claimant met an accident due to rash and negligent driving of Scooter, RRM 8163, by Surendra Kumar Malhotra. It is urged that the learned Judge of the Tribunal has given specious reasons for discarding cogent and trustworthy evidence led by the claimant. It is submitted that Surendra Kumar was the best witness to contest the claim of the appellant but Surendra Kumar Malhotra did not choose to appear in the witness box and rebut the evidence led on behalf of the claimant and, therefore, this appeal should be