In compensation claims, the burden of proof lies on the claimant, but evidence must be evaluated holistically, and dismissal based solely on missing documents is improper.

ORDER :

GAUTAM KUMAR CHOUDHARY, J.

1. The claimant is in appeal against the judgment passed in Claim Case No. 06 of 2006, whereby and whereunder, the claim application preferred under Section 166 of the Motor Vehicle Act for permanent disability suffered by him in a motor vehicle accident has been dismissed.

2. As per the case of the claimant, he was aged about 32 years and a driver of a tanker bearing Registration No. BR-13G-5675 which met with an accident with another truck bearing Registration No. WB-23- 8075 on 02.07.2005. Accident was caused due to rash and negligent driving by the driver of truck No. WB-23-8075. Both the vehicles involved in the accident were under the insurance cover. The tanker being driven by the claimant was insured by the National Insurance Company Ltd. (respondent No.2) and the truck bearing Registration No. WB-23-8075 was insured by United India Insurance Company Ltd. (respondent No.6).

3. The learned Tribunal framed following main issues:

Issue No.III: Was the driver of both the vehicles having valid driving license?

Issue No.IV: Was the accident caused due to rash and negligent driving by the driver of vehicle Truck No. WB-23-8075?

Issue No.V: Was the claimant entitled to get claim and from whom?

4. The learned Tribunal dismissed the claim application by recording a finding that the claimant had failed to prove that accident was caused by rash and negligent driving of truck bearing Registration No. WB-23-8075 and further the medical bills were not accepted, as the doctor- Dr. S.N. Yadav was not examined nor the prescription issued by him was not produced and exhibited.

5. It is argued by learned counsel appearing on behalf of the appellant that Hazaribagh Sadar P.S. Case No. 299/2005 was registered under Sections 279, 337, 338/34 of Indian Penal Code on the next day of accident against the driver of both the vehicle (Ext.1) on the basis of fardbeyan of Chowkidar. The police on investigation found the case true and submitted charge-sheet (Ext.2) against the driver of both the vehicles. Immediately after the accident, the claimant was admitted for treatment at Sadar Hospital Hazaribagh on 02.07.2005 and a certificate issued by the Deputy Superintendent Sadar Hospital, Hazaribagh has been adduced into evidence (Ext.3). The claimant also suffered permanent disability in the said accident and in proof, the disability certificate issued by the Medical Board has been adduced into evidence and marked as Ext.4. These materials on record proved the accident and injuries suffered by the claimant.

6. It is submitted and rightly so, that in a claim case the proof of a fact is to be made on the basis of pre-ponderance of probability and on this documentary evidence as well as oral evidence of the claimant himself (CW1) established that the claimant sustained permanent disability in the said accident. The Tribunal brushed aside all these evidences only on the ground that the prescription of the orthopedic surgeon was not annexed in the medical bills.

7. It is further argued that the charge-sheet was submitted against the driver of both the vehicles but CW1 who was the victim of the accident has categorically stated that in para 4 of his examination-in- chief on affidavit that the accident was caused due to rash and negligent driving by another truck which was speeding towards it. As a result of accident, he became unconscious and regained his sense in Sadar Hospital, Hazaribagh. He has also narrated in detail his treatment by Dr. S.N. Yadav at Ranchi.

8. It is argued by learned counsel for the Insurance Company that learned Tribunal has recorded a finding of fact that the claimant was himself responsible for the accident and, therefore, he cannot claim the compensation for his own wrong. Further, the disability certificate as well as a certificate of treatment in Sadar Hospital, Hazaribagh is after a lapse of more than four years and neither the orthopedic surgeon nor the doctor, who examined the claimant after accident,