In a hit-and-run accident case, the F.I.R. lodged on the night of the incident, which records the number of the erring truck, is admissible as evidence under Section 157 of the Evidence Act, 1872, and it shifts the burden of proof on the respondents to establish the identity of the erring truck.

( 1 ) THIS appeal is directed against nil award dated 20. 3. 1989 of motor Accidents Claims Tribunal, Rewa, whereby the claim of all the appellants who are widow and parents of deceased raju, was rejected.

( 2 ) DECEASED Raju who was a rickshaw puller died in an accident in the night of 3. 9. 1986 at about 9. 30 p. m. near Bhuriya tanki in the area of Bansnagar Colony, rewa, near P. D. S. Crossing. Raju was coming on his cycle-rickshaw and truck no. MPA 8485 driven by Munnalal was coming from the opposite direction, the truck struck against the cycle-rickshaw and Raju was killed.

( 3 ) THE Tribunal declined to award anything on the ground that it was not established that the erring truck was MPA 8485. It may be noticed that this truck was insured with respondent No. 3 and was owned by respondent No. 1 and driven by respondent No. 2.

( 4 ) IN order to establish that this was the erring truck the claimants had proved that f. I. R. which was lodged on the night of the incident itself by Jyanendra Shrivastava, AW 5, at 10 p. m. Number of this truck is mentioned in the F. I. R. on the basis of information given to Shrivastava by some boy described by him as Thakur, who according to him had witnessed the incident. The alleged Thakur has not been examined as a witness. Shrivastava supported this fact on oath as AW 5.

( 5 ) THE case set up by the owner and the driver was that this truck had been taken to a place, namely, Shuraghat near Sone river which is about 65 km. away from the spot of accident. Driver Munna appeared in evidence as NAW 2 and narrated that at about 6-7 p. m. he reached Mundaghat where he took meals and then had a punctured wheel of the truck repaired, and then proceeded to Shuraghat. Even before taking his meals he had taken diesel filling at some petrol pump of which the exact location with reference to spot of accident has not been described.

( 6 ) THE Tribunal was of the view that since Shrivastava, AW 5, was the only witness about the identity of the truck and his evidence was based on hearsay, it could not be accepted as sufficient evidence to establish identity of the truck which caused the accident, because Thakur on whose information truck number was given, had not been examined. The Tribunal had accepted evidence of Munna that he did not pass the spot of accident at 9. 30 p. m. and that night he had taken sand load at shuraghat near Sone river. This fact that he had taken sand load at morning time and truck loaded with sand started back at 7. 30 a. m. on 4. 9. 1986 was stated by NAW 1 which is the contractor of sand mines.

( 7 ) LEARNED counsel for the appellant as well as the insurance company, have taken us through the evidence of the witnesses as well as F. I. R. The counsel for the claimants urges that the plea of the truck owner was the plea of alibi and does not exclude the possibility that this truck passed the site of accident that night at about 9. 30 p. m. It is also urged that even if it is based on the information given by another boy, the number of truck was recorded in the f. I. R. There is no allegation that Shrivastava who gave number of this truck was in any manner knowing the identity of this truck as the truck plying in that area and he has no animosity against the truck owner to falsely give the number in the f. I. R. The F. I. R. was instantaneous in so far as it was given within half an hour of accident, so there was no scope for preplanning. So it is argued that the evidence should be accepted, as balance of probability is suggesting that this was the erring truck.

( 8 ) IT may be noticed that in civil cases the burden of proof required is not proof beyond doubt but a preponderance of probabilities. The question before this court is whether the identity of erring truck recorded in the F. I. R. was false or could be wrong. The F. I. R. had been recorded at 10 p. m. the same night, that is, within hour of the accident. This has not been challenged. No questions were put