J U D G M E N T

The present Appeal had been filed by the petitioners in M.C.O.P.No. 2443 of 2014 on the file of II Court of Small Causes, Chennai/ Motor Accident Claims Tribunal, aggrieved by the Judgment dated 18.08.2017 whereby the Tribunal had dismissed the claim petition filed under Section 166 of the Motor Vehicles Act and Rule 3 of the Motor Accident Claims Tribunal, relating to the death of one J. Harron Basha, who unfortunately died in a road accident on 29.12.2013.

2. The deceased was travelling as pillion rider in a two wheeler bearing Registration No. TN-19-H-7088, in GST Road, Chengelpet travelling towards Tambaram.

3. Mr. S.Arun Kumar, learned counsel appearing for the second respondent/Insurance Company pointed out this particular fact in view of the discussions which arose during the course of argument, and stated that the said road is a National Highway and was a broad road. When the two wheeler was thus proceeding, a TATA ACE Tempo van over took it. At that time, the side mirror of the TATA ACE Tempo van, the Registration number of which could not be determined even after police investigation, brushed the pillion rider / deceased/ J.Haroon Basha and as a result of that force applied, the driver of the two wheeler lost control and the vehicle was dragged towards the center of the median and the pillion rider fell down and suffered head injuries and was declared dead when brought to the hospital. 4. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 and this naturally meant that the petitioners/legal representatives of the deceased had to discharge the burden of establishing that it was the rash and negligent driving of the two wheeler which caused the accident. They had consciously decided that they would not take recourse to file the petition under Section 163A of the Motor Vehicles Act, 1988.

5. The second respondent/Insurance Company joined issue with the averments made in the petition wherein, it had naturally been stated that the accident occurred only owing to the rash and negligent driving of the driver of the two wheeler, one Prabhu. The respondent on the other hand, insisted that the accident did not take place owing to the rash and negligent driving of the two wheeler / Prabhu and rather it was owing to the fact that the mirror of the side TATA ACE Tempo van dased against the pillion rider and therefore the driver lost control and the accident was not caused by rash and negligent driving.

6. The Tribunal had framed a specific issue whether the accident had happened due to the rash and negligent driving of the rider of the two wheeler.

7. Even before examining further, it must be pointed out that the best witness to speak about such rash and negligent driving would have been the driver, namely, Prabhu, who should have come forward to graze the witness box and should have stated the speed in which he was driving the vehicle, the speed at which the van over took his motorcycle, and whether it was to the left of his vehicle or to the right side of his vehicle and whether he lost control because he was driving speedily or due to the impact of the side mirror of the van brushing the pillion rider. These are all crucial aspects.

8. It must be kept in mind that in a witness box, every witness should also speak about facts which incriminate him and there could be no excuse for not grazing the witness box on that particular ground. To a little extent, Section 132 of the Indian Evidence Act can be referred to on this particular aspect.

9. During the course of trial, the first petitioner before the Claims Tribunal /widow of the deceased examined herself as PW-1. She also examined as PW-2, an eye witness. Exs.P-1 to P-8 were marked. On the side of the respondent, RW-1 was examined, who was the Investigating Officer, and he marked Exs. R-1 and R-2. An official from the Insurance Company was examined as RW-2.

10. The Tribunal to a large extent had analyzed the evidence and had also extracted the