Point of law : Once witness had testified as an eyewitness to accident, it was imperative for the Insurance Company to have produced evidence to rebut claimants’ case - Evidence of witness is sufficient to discharge claimants' onus on principle akin to Section 101 of the Indian Evidence Act, 1872. The Act last mentioned though not applicable to proceedings before the Tribunal proprio vigore, the principle is well established.

JUDGMENT :

J.J. MUNIR, J.

1. This is a claimants’ appeal under Section 173 of the Motor Vehicles Act, 1988.

2. By the impugned judgment and award dated 18.10.2012, the Motor Accident Claims Tribunal/Additional District Judge Court No. 2, Faizabad has dismissed the appellants’ Claim Petition No. 28 of 2012.

3. The motor accident claim arises from an accident that occurred on 24th of November, 2011 at 5:30 in the evening. The victim was one Surendra Kumar Verma. Verma was on his way to his in-laws from Faizabad after doing his days' work. He was proceeding to Village Pure Kashinath, Haripur Jalalabad, P.S. Cantt, District Faizabad, where his in-laws lived. Verma was hit by a Tata Bus bearing Registration No. UP-42B-1968, that is said to have been driven rashly and negligently. Verma, who was on his side of the road, was hit by the bus and crushed under its wheels. He sustained grievous injuries. The passers-by took him to the District Hospital, Faizabad, but he died on way to the hospital.

4. The claimant-appellant-Phoola Devi is Verma’s widow. It is asserted in the claim that Verma was aged 30 years at the time of accident and was a healthy youngman. He was gainfully self employed as a mason and was also into farming. He had an income of Rs. 9,000/- per month. The claim petition was instituted by Varma's widow alone, though in the column of dependents, besides the deceased's widow, Shiv Prasad Verma, his father, Bittan Devi, his mother, Vikas Verma, Vishal Verma and Abhishek Verma, his brothers are also shown. The claim made is for a sum of Rs. 47,80,000/- together with interest.

5. A written statement was filed on behalf of Deo Narain Singh, who is the owner of the offending vehicle. He has acknowledged the fact of being the registered owner of the vehicle and the further fact that opposite party no. 2 to the claim petition, Awadhesh Kumar Singh, who is the third respondent here, is the driver. It was asserted that Awadhesh Kumar Singh had a valid driving license to drive the bus and commands experience on the job. It was pleaded that no First Information Report about the incident was lodged. It is averred that the offending vehicle is registered with the Oriental Insurance Company Ltd. Faizabad, with a policy valid upto 05.01.2012 until midnight. The further stand taken is that the offending vehicle was not involved in the accident. It was asserted that in the event the Tribunal reached conclusion that the offending vehicle was indeed the one involved, liability would fasten upon the Insurance Company to indemnify.

6. The second opposite party to the claim petition, who are second respondent here, that is to say, the Oriental Insurance Company Ltd. Faizabad, represented by its Regional Manager put in their written statement. The appellants' claim was denied. It was asserted that the Insurance Company dispute the factum of accident as also the involvement of the offending vehicle insured by them. It was pleaded that unless the claimant establishes the factum of accident, the Insurance Company had no onus. It was also pleaded that the Insurance Company deny insuring the offending vehicle as well as its validity, unless the registered owner of the vehicle does not prove those facts. The Insurance Company would have onus about the aforesaid fact after the registered owner established the vehicle's insurance and its validity. It was asserted that the registered owner has to prove that the driver possessed a valid and effective driving license and that in case the driver failed to establish a valid and effective driving license on the date of accident, the Insurance Company would have no liability. A plea was also raised that the owner of the vehicle has to establish the validity of other documents, authorizing him to ply the vehicle. The compensation claimed was dubbed as excessive. It was also pleaded that the claim petition is not in the prescribed proforma and was liable to be rejected.

7. The Tribunal, on the basis of parties' pleadin