The necessity of producing substantive evidence in rebuttal when contesting findings of fact made by lower courts.

JUDGMENT

Saral Srivastava, J.

Heard learned counsel for the appellant and learned counsel for the respondents.

2. The present appeal has been filed by the appellant against the award dated 02.05.2009 passed by Motor Accident Claims Tribunal, Court No. 1, Firozabad in M.A.C.P. No. 125 of 2006.

3. Challenging the said award, learned counsel for the appellant has contended that the Tribunal has erred in law in holding that the accident had taken place by the offending vehicle, i.e. Truck No.U.P.93E/6854. It is submitted that the person who lodged the F.I.R. was an eye witness of the accident and in the F.I.R. he had mentioned the number of the offending vehicle as Truck No.R.J.02G.A./4786, but he was not produced by the claimants, and later on, the number of the offending vehicle was changed as Truck No. U.P.93E-6854, insured with the appellant Insurance Company, has been implicated. It is further submitted that it is a case of false implication of the vehicle, which is evident from the fact that the person who lodged the FIR against the Truck No.R.J.02G.A./4786 was not produced, and as such the finding of the Tribunal on the issue of involvement of offending vehicle is perverse and is not sustainable in law.

4. Per contra, learned counsel for the respondents would contend that the claimants/ respondents produced PW2 who was also an eye witness of the accident and deposed that the accident had taken place by Truck No. U.P.93E/6854 and the accident was the result of rash and negligent driving of the Truck No. U.P.93E/6854. It is submitted that the testimony of PW2 is also corroborated by the other documents on record, namely, charge sheet filed against the driver of Truck No. U.P.93E/6854. It is submitted that no evidence in rebuttal to the testimony of PW2 was produced by the appellant Insurance Company and the finding of the Tribunal is based upon proper appreciation of evidence on record being finding of fact is not liable to be interfered with by this Court.

5. I have considered the rival submissions advanced by learned counsel for the parties and perused the record.

6. The Tribunal in concluding that the accident had taken place by Truck No. U.P.93E/6854 placed reliance upon the testimony of PW2 who was an eye witness of the accident, who unequivocally stated that the accident had taken place by Truck No. U.P.93E/6854 due to rash and negligent driving of the driver of the said truck. The testimony of PW2 is also corroborated by the charge sheet filed against the driver of Truck No. U.P.93E/6854.

7. The appellant Insurance Company has set up a case that the offending vehicle, i.e. Truck No. U.P.93E/6854 has been falsely implicated in the accident, then the appellant Insurance Company should have made effort to produce the person who lodged the F.I.R. giving registration number of the other vehicle, i.e. Truck No.R.J.02G.A./4786. Since, the Insurance Company did not discharge its burden and no evidence in rebuttal to the testimony of PW2 has been filed by the Insurance Company, the finding of the Tribunal on the issue of involvement of the vehicle is a finding of fact, based upon proper appreciation of evidence on record, therefore, this Court does not find any illegality committed by the Tribunal in deciding the issue of involvement of the vehicle against the appellant Insurance Company.

8. Thus, for the reasons given above, the appeal lacks merit and is, accordingly, dismissed with no order as to costs.