The burden of proof for contributory negligence, the duty of drivers at intersections, and the rule of res-ipsa loquitor as a rule of evidence in motor accident cases.

JUDGMENT :

1. Sri Nipun Singh appearing for the appellant and Sri S.K. Mehrotra for the respondents.

2. Once the owner admits before the Tribunal to dispose of the claim when it was not proved by the Insurance Company that they were in collusion, this is the main issue involved in this appeal.

3. The brief facts as culled out from the record are that the appellant met with an accident on 25.1.2007 at about 11:45 hrs. when he was driving the motorcycle along with his nephew and was travelling between Delhi to Ghaziabad and when he came near I.P.M. College and he entered the railway flyover, one unknown truck being driven rashly and negligently came on the wrong side and dashed with him. He sustained injuries and he had one of his put amputated. The truck could not be named as his nephew and he both were busy in getting him admitted into the hospital. On 29.1.2007 one of the witnesses came and conveyed to him the number of the truck being numbered as DL-01-GB-5913. The owner of the truck gave him some money so that he may not file criminal case. On notice being issued, the Insurance company appeared and filed their reply. The driver and owner accepted the accident having taken place but contended that the accident occurred due to negligence of the appellant herein.

4. The Tribunal framed about 4 issues and rejected the claim petition holding that it was not proved that the accident occurred with the truck in question. The Tribunal disbelieved PW-1, who is claimant and eye witness. Just because there is 2 days delay, the Tribunal on the basis that the police had filed the summary, it is not conclusively proved that the vehicle was not involved in the accident. The claimant was examined at Yashoda Hospital. PW2 – Subhash Kumar has been disbelieved. The F.I.R. categorically mentions about the truck. Just because the final report was filed will not conclusively prove that the vehicle was not involved. The Tribunal on surmises and conjectures disbelieved PW1 and PW2 only on the ground that there was a delay in filing the F.I.R. The written statement of the owner ought to have been looked into by the Tribunal before brushing aside the judgment and not relying on the authoritative pronouncements in Varinderjit Singh Vs. Tajinder Singh & others, 2008 (4) TAC 250 Punjab and Haryana, Devi Prasad Vs. Zahur Khan, 2001 (2) TAC 419 Madhya Pradesh, and Bhanwar Lal Verma Vs. Sharad Dholiya, 2007 ACJ 52.

5. The appellant has challenged impugned award and decision dated 8.3.2010 on the following amongst grounds:

(i) The order passed by the Tribunal is illegal, arbitrary, without application of mind, cyclostyle manner and cannot be sustained in the eyes of law.

(ii) The court below has failed to consider, while passing the impugned order, that the owner of the vehicle/ respondent no.2 himself admitted that the accident took place by his vehicle.

(iii) There is no negligence on the part of the applicant and the accident took place due to negligence driving of the respondent no.2.

(iv) The court below has failed to consider, while passed the impugned order, that in the statement of PW-2 – Subhash Kumar, who is an eye witness of the aforesaid accident supported the view taken by the appellant.

(v) At the time of accident the appellant is earning Rs.6,500/-per month by generalize and after the accident he got 70% disable and lost his earning capacity.

6. Learned Counsel Sri Nipun Singh has relied on the following decisions:-

(i) Kusum Lata and others Vs. Satbir and others, 2011 (2) Supreme 207;

(ii) Saroj and others Vs. Het Lal and others, (2011) 1 SCC 388; and

(iii) Vimla Devi and others Vs. National Insurance Company Limited and others, 2019 (133) ALR 768;

so as to contend that the petition has been dismissed by assigning reasons which are not germane.

7. It is submitted by Sri S.K. Mahrotra that the petition was rightly dismissed as the F.I.R. culminated into a report and there was no objection raised to that. The owner has colluded with the petitioners and, the