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Judgment
This statutory appeal under Section 173 of the Motor Vehicle Act is filed by the claimantagainst the judgment and award dated 11.05.2012 passed
by the MACT, Jorhat in MAC Case No. 51/2009.
The brief fact of the case was that on 17.03.2009 at about 9 PM, when the claimantwas travelling by riding his motorcycle bearing registration No.
NL-02-E-2432, suddenly a cow appeared before the motorcycle and when he applied break, the motorcycle collided with another vehicle bearing
registration No. AS-03-D/4570, because of rash & negligent driving of the vehicle No. AS-03-D-4570. Learned Tribunal after having conducted an
enquiry and having heard the parties dismissed the claim petition by the impugned order.
Aggrieved by the said order, the claimant preferred the instant appeal.
Learned counsel Mr. C.M. Mahanta for the appellant and Mr. R. Goswami, for therespondent were heard.
The claimant in order to establish the claim examined himself and another witness,projecting him to be an eye witness and also proved documents
being Ext.3, a police report, Ext.4 & 5, two relevant GD entries pertaining to the accident in question and accident information report, Ext.7 besides,
other documents. The claimant and his witness, PW-2, stated that while the claimant was proceeding by driving his motorcycle, the alleged offending
vehicle No. AS-03-D-4570 hit the motorcycle of the claimant from behind and as a result of the said accident, the claimant sustained injuries.
The accident involving two vehicles and the claimant having sustained injuries were notin dispute. In order to prove the accident, the claimant
proved Ext.3, police report as well as Ext.4 & 5 being two GD entries. Ext.3 was apparently issued by police subsequently on the basis of the Ext.4 &
As per Ext.4, upon receiving information from an un-known person, that a vehicle collided with a scooter causing injuries to the rider of the scooter,
Ext. 4 GD entry was made at 9.10 PM and ASI N. Handique was entrusted to make a preliminary enquiry. Immediately, the said police officer,
proceeded to the place of occurrence and after making a preliminary enquiry, made another GD entry (Ext.5) at 9.45 PM, wherein it was mentioned
that when the rider of the motorcycle was proceeding towards RRL side, the alleged offending vehicle was coming from RRL side and the rider of
the motorcycle, for his own fault hit the rural taxi, which was coming from the opposite direction and fell down and the injured was immediately shifted
to hospital. It was mentioned in the said report, that the accident occurred due to fault of the rider of the motorcycle himself. Besides the said police
report, MVI report regarding damage of the motorcycle was also proved and marked as Ext.6, which demonstrated, that the headlight of the
motorcycle and front mudguard and other parts in the front side of the motorcycle was damaged. There was no damage on the backside of the
motorcycle. On the basis of the above evidence, more particularly, the damage in the motorcycle and the police report (Ext.5), learned Tribunal came
to the finding that both the claimant and PW-2 deposed falsely regarding the accident, and narrated a concocted story before the Tribunal, which was
belied by Ext.5 and also the Ext.6, the MVI report.
Learned counsel for the appellant submits, that in a motor accident claim case, tribunalshould not ask for strictest proof and if some evidence is
brought on record to substantiate the claim, in absence of any contrary evidence, the Tribunal should accept the evidence brought on record by the
claimant keeping in view the social object of the legislation. There is no dispute about the proposition, that in claim case before Motor Accident Claims
Tribunal, the claimant need not prove the facts by evidence beyond doubt and standard of proof in such a case cannot be higher than that of
preponderance of probability. In the instant case, as indicated above, there was no dispute as regards the accident. The claim petition having been filed
under Section 166 of the MV Act, learned Tribunal dismissed the claim petition having recorded the finding that the claimant has failed to prove the
fault of the respondent
Section 141 of the MV Act, provides that all the claims except the claim under Section163-A and 140 of the MV Act, shall be governed by fault
liability as per common law of tort, and as such, to succeed in a claim petition under Section 166 of the MV Act, claimant has to establish atleast by
evidence in the touchstone of preponderance of probability, that the accident occurred due to fault of the respondent. A claim petition under Section
166 MV Act cannot succeeds in absence of proof that the accident took place due to fault of the offending vehicle or the respondent.
In the present case, the oral evidence adduced by the claimant was that when a cowcame infront of the motorcycle of the claimant, he applied
break and the alleged offending vehicle hit the motorcycle from back side. But such oral evidence of the claimant and also of PW-2 was belied by
documentary evidence, Ext.6, the MVI report and the Ext.5, GD entry, which was submitted by police after preliminary investigation. Both the Ext.6
and 5 were proved by the claimant himself.
Mr. R. Goswami, learned counsel for the Insurance Company placing reliance of adecision of the Apex Court in Oriental Insurance Co. Vs.
Premalata Sukla reported in (2007) 13 SCC 476 submits that the claimant cannot disown the documentary evidence produced and relied by the
claimant himself and turned around. The contention of the learned counsel is that the Ext. 5 & 6 were proved by the claimant himself and as such, the
claimant cannot disown such document only because it does not support his case. The Apex Court in Oriental Insurance Company Ltd. Vs. Premlata
Shukla (supra) observed that once a part of the contents of a document, is admitted in evidence, the party bringing the same on record cannot be
permitted to turn round and contend that the other contents, contained in the rest part thereof, has not been proved.
The claimant proved Ext.3, Ext.4, Ext.5 and Ext.6 besides oral evidence of the claimantand another person examined as PW-2. All these
documentary evidence proved by the claimant shows that the accident occurred due to collision of the vehicle driven by the claimant and the alleged
offending vehicle. Ext.5 & Ext.6 show that the accident occurred due to head on collision and the claimant was fully responsible for the accident.
Therefore, the submission of Mr. Goswami appears to have merit, inasmuch as, the documentary Ext.5 having been proved by the claimant himself, he
cannot rely on one part of it and refused to rely on another part. One thing is abundantly clear in the instant case, that the case sought to be projected
by the claimant, to attribute fault and negligence to the owner and driver of the alleged offending vehicle was belied by Ext.5 and Ext.6, reason being
that case of the claimant that the offending vehicle hit the vehicle of the claimant from back was rendered totally unworthy of trust by the Ext.6 report
of the M.V. Inspector proved by the claimant himself. Therefore, evidently the claimant was left with no evidence on its credit to establish even by the
standard of preponderance of probability, that the accident occurred due to fault of the alleged offending vehicle. Rather the Ext.5 & Ext.6 clearly
indicated that accident occurred due to fault of the claimant himself.
Apparently the learned Tribunal having considered all the materials brought on record,came to the finding, that the claimant failed to prove that the
accident occurred due to rash & negligent driving of the offending vehicle. Apparently, the oral evidence adduced by the claimant was found to be
totally concocted and unworthy of trust. When there was no evidence from the side of the claimant to prove, that the accident occurred due to fault of
the respondent and the evidence adduced by the claimant himself demonstrated that the accident occurred due to fault of the claimant, the finding of
the learned Tribunal and dismissal of the claim petition, in absence of prove of fault on the part of the respondent, in my considered view cannot be
faulted. Situated thus, this court is left with no other alternative, but to concur with the finding of the learned Tribunal. Therefore, the appeal is found
devoid of merit and accordingly dismissed.
Send back the LCR.