K. Kannan, J. - (1.) The appeal is at the instance of the parents of the deceased who had died in a road side accident in his youthful age of 17 years. The claim petition was founded on the plea that on a way to school, he had taken lift from a friend on his scooter and the accident had taken place when the 2nd respondent's vehicle truck dashed against the scooter from behind, by the impact of which the deceased was thrown out and succumbed to his injuries on his skull. PW2 who is said to have been present at that time in the vicinity had given a complaint giving the details of the vehicle with registration number that had been involved in the accident and a case was registered and the driver had been prosecuted before a criminal court. Respondents No. 1 and 2, namely, the driver and the owner had filed a written statement contending that no such accident taken place and the claimants were also not the legal representatives of the deceased. It was another way of saying that the respondents were denying the version which was capable of even being verified. At the trial, when PW2, eye witness gave evidence but he was sought to be discredited by the fact that he was a cousin of the deceased in the fourth degree and that he had given a false statement. The driver himself offered the evidence and improved his version in trial by suggesting that he saw the accident coming from behind but it was some other bus which was involved in the accident but not his truck. This evidence was even objected to at the time of trial on the ground that it was beyond pleading but the Tribunal chose to believe the version and expressed a doubt that PW2 who was a Munishi under an advocate must have been in the court at the relevant time and he could not have been standing on the road. He also reasoned that the person with whom PW2 said to be talking was not examined; nor was even the scooterist was examined for he would have been the most competent person to speak about the accident involving yet another vehicle.
(2.) Counsel for the appellants points out that there was no reason to doubt the FIR which sets out every important ingredient that would make the version plausible and the fact that PW2 was a Munshi under an advocate could not have been taken as a circumstance to discredit his version. The counsel appearing for the respondents reiterates the line of reasoning adopted by the Tribunal and doubt the veracity of PW2 by pointing out to the inadequacy of the evidence on the side of the claimants to examine the scooterist and the by-stander with whom PW 2 was engaged in conversation at the time of accident.
(3.) A case is decided on the evidence which is brought before the court and not by what a particular person has omitted to do. The omission could be material if vital piece of evidence is withdrawn and which may suggest an adverse inference to be drawn for non-examination of such a party. If a person said to be in the vicinity of the accident side gives a report to the police on the basis of which criminal investigation is undertaken and if that witness also comes to court to depose, then there was nothing more that was necessary before the Tribunal. The standard of proof before a Tribunal cannot be as extracting as it is in the criminal case, where the principle operating is different. A Tribunal, it is cliched acts on preponderance of probability while a criminal court looks to standard of proof beyond doubt. It is no doubt true that if the scooterist had been examined it could not have left any room for doubt. The doubt could have arisen in a situation where there was no reference of the 2nd respondent's vehicle in the FIR or if there had been extra-ordinary delay in lodging the FIR and there was some proof of collusion between the claimants and the insured. In this case, the person who denies the accident is the driver and there was no question of collusion when there was express denial. It must be noticed that RW1 was not prepared to go as far as to state that he did not know about the accident at all. He claims to be a witness but he would make it appear that he was a witness to involvement of a bus that caused accident. If this was so this was perhaps the most telling incident which he would have set forth in his written statement. There could not have been bald denial that his vehicle was not involved or that there ought to have been positive information that yet another vehicle was involved, which after all if true in his knowledge and that must have been stated so in his written statement. I find the defence to be false and the Tribunal had committed a grave error in dismissing the petition. I reverse the finding and hold that the involvement of respondent's vehicle was established.;