The plaintiff has the burden of proving that the accident was caused by the rashness or negligence of the driver, and the absence of a license for driving a tractor is not relevant in determining the liability of the insurance company if the driver is not shown to be negligent.

1. The appellant Dharam Chand filed a claim before the Motor Accidents Claims Tribunal, Punjab, Chandigarh, in respect of a fatal accident to his son Jagdish Chander, aged 10 years, alleged to have been caused by the rashness and negligence of Shiv Pat (respondent No. 1), who was driving the tractor belonging to Amin Chand, Lambardar of village Azimgarh (respondent No. 2), while respondent No. 3, is the insurance company. The claim having been dismissed by the learned presiding officer of the Tribunal, Dharam Chand has appealed.

2. There is no dispute that on the 20th August, 1960, while Shiv Pat was driving the tractor of Amin Chand, Jagdish Chander, son of the appellant, came under it and was fatally injured. The claim application stated that according to the Police report, of which a copy was enclosed, the deceased died by an accident with a tractor and according to the post mortem report he died due to the accident and injuries from the wheel of the tractor. The post mortem report was also enclosed. The respondent, of course, resisted the claim. Now the curious feature of this case is that according to the Police report of the 20th August, 1960. which was made at Police Station Abohar by Kahna Ram, who has appeared as R. W. 4, Jagdish had himself got on the plough of the tractor while it was being driven by Shiv Pat. that on seeing a pit Shiv Pat applied the brakes to the tractor and so Jagdish fell off the plough and came under the wheel of the tractor and sustained injuries. At the time of the making of the report, Dharam Chand plaintiff is also shown as being present and to have corroborated the statement given by Kahna Ram. The Police accordingly found that no offence had been committed and that the death of Jagdish Chander was accidental. However, it appears that later on the plaintiff moved various authorities and under the orders of the Deputy Superintendent of Police, Abohar, Assistant Sub-Inspector Harnam Singh (A. W. 2) challaned Shiv Pat. A criminal case against Shiv Pat for rash and negligent driving was registered on the 12th December, 1960, and it was still pending when the plaintiff filed his suit.

3. The plaintiff is also a resident of Abohar and he stated that his son Jagdish had gone to visit the plaintiffs mother-in-law Mrs. Lajwanti in village Azimgarh. The plaintiff was, of course, not present at the time of the accident and the dead body of Jagdish Chander was brought to his house at about 6 p.m. In cross-examination the plaintiff was confronted with his statement (included in Exhibit D.A.) and he denied having made the statement though he admitted that he was made to sign that statement.

4. At the trial the only person put forward as an eye-witness of the occurrence was Mrs. Lajwanti. the maternal grandmother of Jagdish Chander and though in his examination-in-chief she stated that she saw the boy sitting with the driver and the boy fell off the tractor and was run over by the rash and negligent act of Shiv Pat but in cross-examination she hesitated and fumbled and said that she was informed that her grandson was being carried and that she was informed at home. From the half-hearted way in which she made the statement, the Tribunal concluded that she was in all probabilities not present at the scene of the accident On the other hand Shiv Pat himself as R. W. 1 testified that the boy got on the plough of the tractor unknown to the witness and when noticing a pit Shiv Pat applied the brakes suddenly and the accident occurred. Rulia (R W. 2) chowkidar of the village, testified that he saw Shiv Pat lifting a boy aged 8 or 9 years and that the witness was the only other person at the spot. From there the boy was taken to the house of Amin Chand Lambardar where Kahna, Lajwanti and Dharmoli (R W. 3) were present. The evidence of R. Ws. 2 to 4 shows that Lajwanti was not present at the scene of the accident but was in the house of Amin Chand. As a matter of fact, Lajwanti herself admitted that during