The need for evidence to establish negligence and the standard of preponderance of probability for arriving at such findings.

1. Heard Ms. S. Choudhury, learned counsel appearing for the claimant-appellants as well as Mr. P. Gautam, learned counsel appearing for the respondent No. 2, National Insurance Company Limited. None appears for the respondent No. 1 despite due notice from this Court.

2. This is an appeal under Section 173 of Motor Vehicle Act, 1988 from the judgment dated 18.05.2016 delivered in T.S. (MAC) No. 135 of 2011 by the Motor Accident Claims Tribunal, No. 3, West Tripura, Agartala. By the said judgment the claim raised by the claimant-appellants for death of one Subhas Chandra Das in road traffic accident under Section 166 of the Motor Vehicle Act, 1988 was dismissed holding inter-alia that the claimant-appellants failed to prove that the road traffic accident that occurred on 30.01.2011 at about 9.00 to 9.30 a.m. near Gokulnagar B.S.F. camp on Agartala- Bishalghar road under Bishalghar Police Station did not happen for rash and negligent driving of the vehicle bearing No. TR-01-U-0215 [TATA Indica].

3. There is no dispute that on 30.01.2011 the said vehicle was under valid insurance coverage provided by the respondent No. 2 herein. The Tribunal, after considering the evidentiary materials as placed by the claimant-appellants, came to a definite finding that the accident has not been proved to have occurred for rash and negligent driving and as such no compensation under Section 166 of the Motor Vehicle Act can be awarded for such compensation the tortious liability can only emerge from negligence. Unless negligence is pleaded and proved, tortious liability cannot emerge nor damage can be assessed for purpose of granting compensation

4. Ms. S. Choudhury, learned counsel while questioning the said finding has submitted that the finding is entirely mechanical and has emanated for non-appreciation of some material documents which were introduced by claimant-appellants in the record of the evidence. Ms. Choudhury, learned counsel has submitted that on 29.03.2011 one Sentu Das reported the said road traffic accident to the Officer-In-Charge, Bishalgarh police station by giving an explanation that since he was busy with treatment of Subhas Chandra Das since deceased, the elder brother of the said informant, the information could not be lodged immediately after the occurrence. The documents like the certificate for handicapped person as issued by the locomotor specialist has also been introduced in the evidence as part of the Exhibit-1 series. The discharge summary as issued by the Kothari Medical Centre is also introduced by the petitioner but the said certificate was not admitted in the evidence. However, the referral certificate of the Standing Medical Board of the Government of Tripura has been admitted in the evidence as part of Exhibit-1 series “the injured was suffered from traumatic paraplegia and is under treatment at A.G.M.C. and G.B.P. hospital, Agartala.” The injured was referred to S.S.K.M. hospital Kolkata. In the said discharge certificate also there is no reference to the road traffic accident. Similarly from the discharge certificate dated 28.06.2011 issued by the Tripura Medical Collage and Dr. B.R. Ambedkar Memorial Hospital it cannot be found that anyone reported that the injuries were from the road traffic accident. The patient was diagnosed as “L1 paraplegic & Bed Sore.” From the certificate for handicapped person it appears further that the deceased suffered paraplegia lower left of the body due to RTA. The said certificate was issued on 16.11.2011. Ms Choudhury, learned counsel has pointed out that in the G.D. the information that was filed on 29.03.2011 was entered. In that information, it has been stated that the offending vehicle, which was being driven violently, dashed the deceased and he was taken to the Bishalghar hospital in a critical condition. No record from the Bishalghar hospital has been produced in the Tribunal or in the appellant proceeding.

5. Mr. P. Gautam, learned counsel appearing