Point of Law: Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue.

JUDGMENT :

1. Heard learned counsel for appellant, learned counsel for respondent claimant and Mr. Akhilesh Kumar Srivastava, learned counsel for respondents 2 and 3. No-one has appeared on behalf of respondent no.4.

2. First Appeal from Order has been filed under Section 173 of the Motor Vehicles Act, 1988(hereinafter referred to as the Act) against the judgment and award dated 31.05.2008 passed in Claim Petition No.138 of 2006 (Vasishtha Maurya v. Chairman, U.P.S.R.T.C. and others) whereby the claim petition of the injured claimant has been allowed awarding a compensation of Rs.2,72,800/-along with 8% interest per annum with the appellant insurance company liable to satisfy the award.

3. Learned counsel for appellant submits that the incident had occurred in the night of 19/20th January, 2005. In the Claim Petition, the claimant has averred that he was travelling as a passenger on the Roadways bus No. U.P. 42/T-2068. When the bus was standing due to a traffic jam near Ram Sanehi Ghat bridge, the claimant had deboarded the bus in order to relieve himself but had slipped and fallen on endeavouring to board the bus thereafter due to the fact that the bus had started moving again. Learned counsel for appellant has submitted that the present appeal is being pressed only with regard to the factum of contributory negligence on the part of the claimant and while other grounds have also been taken particularly with regard to challenge to the quantum of compensation, the same are not being pressed in the present appeal.

4. It is submitted by learned counsel for appellant that when the offending bus was in the midst of its journey and had stopped owing to a traffic jam, there was no occasion for the claimant to have deboarded the bus without informing either the driver or the conductor of the bus who being unaware about the claimant deboarding the bus were perfectly within their right to restart the journey once the traffic jam had cleared. It is thus submitted that it is the claimant himself who is to blame for the incident that had taken place due to which he had suffered injuries and as such the Roadways is not at all liable to make good the compensation. Since the offending bus was insured with the appellant, the appellant as such is also not liable to satisfy the award. Learned counsel has further submitted that the Tribunal should have recorded a finding with regard to contributory negligence of the claimant regarding the incident that had occurred.

5. Learned counsel for the claimant respondent no.1 has refuted the submissions advanced by learned counsel for appellant with the submission that the ground pertaining to contributory negligence has not been taken before the Tribunal concerned and, therefore, the appellant is prohibited from taking such a ground for the first time in appeal. Learned counsel has further submitted that the evidence on record clearly indicated that the claimant had deboarded the bus after informing the driver and the conductor who were well-aware of the said fact and even after the claimant had fallen from the bus on trying to re-board it, co-passengers of the claimant had drawn attention of the bus driver to the said fact who ignored the same and drove the bus in a rash and negligent fashion resulting in the incident in question in which the claimant had suffered injuries to the tune of 70%. Learned counsel has submitted that the judgment and award under challenge has been passed after considering the material evidence on record and does not require to be interfered with.

6. Considering the material on record and submissions advanced by learned counsel for the parties, it is evident that the sole question involved in the present appeal pertains to contributory negligence on the part of the claimant due to which he has suffered injuries. The point of determination therefore in the present appeal is as follows:-

7. Whether the judgment and award impugned has occasioned an error of law since the aspect of contri