The court upheld the tribunal's findings on the basis of corroborative eyewitness testimony and reasonable income assessment, affirming that absence of certain witnesses does not undermine established evidence.

JUDGMENT :

Rajnish Kumar,J.

1. Heard, Mrs. Pooja Arora,Advocate holding brief of Sri Subhash Chandra Gulati, learned counsel for the appellant and Sri Priyam Mishra,learned counsel for the claimant-respondents. None appeared on behalf of other respondents, even in the revised list and they had also not appeared on the earlier dates also.

2. The instant first appeal from order under Section 173 of the Motor Vehicles Act,1988 has been filed against the judgment and award dated 06.05.2017 passed by Motor Accidents Claim Tribunal/Additional District Judge,Court No.8, Raebarely in Motor Accident Claim Petition No.163/16 (Smt. Dayawati Gupta and others versus Smt. Shashibala Gupta and Others).

3. Learned counsel for the appellant submitted that the impugned judgment and award passed by the tribunal is not sustainable in the eyes of law for the reasons that P.W.2 who is an alleged eye witness, though a member of inquest report has not informed the number of the offending vehicle at the time of inquest, therefore, he cannot be said to be an eye witness and his presence on spot is doubtful and either of the persons who were sitting alongwith the deceased has not been produced as a witness to prove the accident and rash and negligent driving. It has further been submitted that a person sitting in the vehicle of the deceased could have been the best witness to prove the accident and rash and negligent driving in view of Section 114(g) of the Evidence Act. Thus the accident cannot be said to have been proved. She further submitted that despite any cogent evidence in regard to the income of the deceased, the income has been determined as Rs.50,000/-, which could not have been done. The application for summoning of the income tax returns of the appellant and providing copies thereof was illegaly rejected by the tribunal, therefore, sufficient opportunity has not been afforded to the appellant in regard to determination of the income of the deceased, whereas the tribunal exercises the power of a civil court for the purpose of taking evidence etc. under Section 169(2) of the Motor Vehicles Act 1988, therefore it could have been summoned. He relied on Malarvizhi and others versus United India Insurance Company Limited and Another ; 2020 (1) T.A.C. 328 (S.C.), Oriental Insurance Company Limited versus Premlata Shukla and Others ; 2007(3) T.A.C. 11 (S.C.), Gopal, Krishnaji Ketkar versus Mahomed Haji Latif and Others ; AIR 1968 Supreme Court 1413, Parashuram Pal and Others versus Ram Lakhan and Another passed by a Division Bench of this Court in F.A.F.O. No.956 of 2013 and a Coordinate Bench decision of this Court in the case of Shriram General Insurance Company Limited versus Smt. Hem Lata and Others ; 2021 (2) T.A.C. 366(All.)

4. Per contra, learned counsel for the claimant-respondents submitted that the impugned judgment and award has rightly been passed in accordance with law by the tribunal. There is no illegality or infirmity in it for the reasons that once an eye witness was produced, who proved the accident and nothing could be extracted from him in the cross examination, which may doubt his veracity or presence on spot, merely because a person who was sitting in the car has not been produced, therefore it cannot be said that the accident could not be proved and doubt cannot be raised about the presence of the eye witness. He further submitted that the application for summoning and providing copies of the income tax returns was moved on the date of judgment, which was rightly dismissed by the tribunal. He further s