K.KANNAN, J. - (1.) THE appeal is against the dismissal of the petition for compensation for death of the one Jagir Singh on 14.05.1997. The claimants were parents and the sister of the deceased. As per the averments in the petition, the accident had taken place at 2 a.m., when the deceased was taking refreshments at the Dhaba about two feet from the beam of the road when a bus belonging to the respondents coming from the Ambala side moving towards Haridwar hit against the deceased as a result of which he fell down on the road and succumbed to injuries on the spot. The third petitioner, who was the sister of the deceased and a young lady, was supposed to have accompanied his brother and she had left for the village to inform her parents leaving one Harjinder Singh to stay at the dead body. By the time when she returned, the police had already taken the dead body to the civil hospital at Saharanpur where a postmortem had been done and the body was handed over to the parents. The contention of the petitioners was that the police did not register a complaint and at the trial, although the respondents driver and owner were served, they did not come to defend themselves. The Tribunal was not convinced on the truth of the contentions in the petition and proceeded to dismiss the petition.
(2.) IT is now contended by the counsel for the appellant that in a case where the driver and owner, who had been impleaded as parties had not come to defend themselves, a claim of the insurer that the accident had not taken place involving the insured's vehicle ought not to have been accepted. It is the further contention that reasoning of the Tribunal that sister of the deceased could not have accompanied the deceased at the thick of the night when the accident had taken place in a tractor was not justified, for the reasons had been given by the petitioners themselves that the deceased had reason go to Delhi to see off the husband of the sister to foreign country and they were returning from Delhi when the accident had taken place. Learned counsel for the appellants also refers to some decisions of the Hon'ble Supreme Court on the effect of a party not appearing in Court to defend himself. The counsel relies on a judgment in Vidhyadhar v. Mankikrao and another 1995 (2) CCC 91 (SC) and said that party not entering in witness box to state his own case on oath and not offering himself to be examined by the other side, a presumption was bound to arise that a case set up by him was not correct. In Madhya Pradesh State Road Transport Corporation v. Vaijanti and others 1995 ACJ 560 a Division Bench of Madhya Pradesh High court has held that non -examination of a driver of the offending vehicle drew adverse inference against him. In Smt. Kundan Bala Vora and another v. State of U.P. AIR 1983 All 409 a widow of the deceased, who was traveling along with him at the time of accident gave details of the accident and although she would not recall the manufacturing details of the car of either as a Ambassador or Fiat, the Court held that the evidence of an eyewitness could not be brushed aside. When judgment has been delivered dismissing the petition and the award is assailed in the Appellate Court, it becomes necessary to show that the Tribunal had committed error in reasoning and it could not have taken a decision on the basis of evidence placed before it. In this case, the Tribunal held that the evidence of PW -1 was not convincing at all that she was at the place of accident and she had noted down also the vehicle number and the police had not taken any action. The Tribunal had reasoned that it was artificial that the claimants would not have complained to higher authorities for not taking appropriate action by failing to register the complaint. The Tribunal also pointed out that nobody from the Dhaba itself was examined to say that the accident had taken' place involving the particular vehicle. The Tribunal found that it was merely a case of hit and run and the only fact that the driver or owner had remained ex parte cannot bring an inference that the contentions raised by the claimants were established. I find every one of the lines of reasoning adopted by the Tribunal perfect and no exception could be taken to the ultimate decision to dismiss the petition. The general proposition that an adverse inference must be drawn against a party, who fails to examine himself must be understood in the context of when the involvement of the vehicle was an established fact and the effect of driver to explain the act could lead to an inference that the negligence attributed against him was established. The burden of proof never shifts, only the onus of proof shifts. The burden of proof in establishing that the accident had taken place by involvement of a particular vehicle is always on the petitioners. Another important ingredient of the involvement of the vehicle is also lacking. If there had been an accident involving a known vehicle, details of which had also been recorded by an eyewitness and a close relative of the deceased, at that, it is difficult to understand as to why a FIR could not have been registered. There is particularly no reason why the police would fail to register a complaint, if information had been given by the eye -witness. The person, who has failed to have a complaint registered, could not have rested actually without complaining to higher authorities. In this case, persons at Dhaba would have definitely known the details of the accident and would have themselves come forward to give a complaint to the police, if the accident had taken place in the manner alleged. A person, who was an eye -witness to the incident, could not have left the place at night to her village leaving the dead body there and not accompanying the same to the hospital to give information about how her brother died. In the absence of relevant evidence, which ought to have existed if the incident as narrated was true incongruities were one too many, I find no reason take a different view from how it has been dealt with by the Tribunal.
(3.) THE award is confirmed and the appeal is dismissed.;