CHAUHAN, J. - (1.) THE parents, the brothers and the sisters have challenged the award dated 23. 10. 98 passed by the Motor Accident Claims Tribunal, Nim-Ka-Thana, District Sikar (for short 'the Tribunal',), whereby the learned Tribunal has dismissed the claim petition filed by them on account of death of Mahipal, the son of appellant No. 1 and 2 and the brother of appellant Nos. 3 to 6.
(2.) BRIEFLY, the facts of the case are that on 8. 11. 94 in the evening Mahipal was going on his motorcycle alongwith his friend Subhash Yadav (AW. 3 ). Allegedly, around 6. 40 p. m. when the motorcycle reached near Navodaya Vidhyalaya in village Patan, a tractor bearing Registration No. RJ-23-R-1407 came from the opposite side and being driven rashly and negligently, hit the motorcycle. Consequently the tank of the motorcycle burst and Mahipal was burnt. He was immediately rushed to the S. M. S. Hospital, Jaipur where he scummed to his injuries on 13. 12. 94. The appellants filed a claim petition for a compensation of Rs. 31,23,600/ -. In order to support of their case, they examined five witnesses and submitted 36 documents. The respondents Nos. 1 and 2 examined a single witness and respondent No. 3 also examined a single witness. After going through the oral and documentary evidence the learned Tribunal dismissed the claim petition on the ground that the negligence of the offending tractor could not be proved. In fact, from the testimony of A. W. 3 Subhash Yadav, it was clearly proved that the negligence was that of Mahipal and not of the driver of the tractor. Since the accident had occurred due to negligence of the Mahipal himself, the learned Tribunal dismissed the claim petition. Mr. Ajay Gupta, the learned counsel for the appellants, has vehemently contended that the Motor Vehicles Act, 1988 ('the Act', for short) is a beneficial piece of legislation enacted for the benefit of the claimants. Moreover, according to Section 163- A it is not for the claimant to prove that the accident had occurred due to negligence of the offending vehicle. Therefore, the burden was not on the claimant to prove that the driver of the truck was negligent in his driving. Furthermore, that the Insurance Company did not plead that the accident had occurred due to the negligence of the Mahipal himself. Lastly, that as Subhash Yadav was examined on behalf of the claimant, and although his testimony might have been demolished in the cross- examination, but nonetheless his cross-examination cannot be relied upon by the respondent No. 3 to plead a case of negligence on the part of Mahipal. For, the respondent No. 3 never pleaded that the accident was caused due to negligence on the part of deceased. On the other hand, Mr. Gaurav Jain, the learned counsel for respondent No. 3 the Insurance Company has supported the impugned award. We have heard both the learned counsels and have perused the impugned award and examined the record of the case which has been produced before this Court. Undoubtedly, the Act is a beneficial piece of legislation which seeks to promote the interest of the claimant. However, merely because it is a beneficial piece of legislation, does not mean that the fundamental and settled principles of law should be ignored while assessing the evidence. Therefore, the basic principles of law will have to be borne in mind while assessing the evidence produced during the trial proceedings.
(3.) SECTION 163-A of the Act is as under :-      " 163a. Special provisions as to payment of compensation on structured formula basis.-- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation. For the purposes of this sub-section, "permanent disability" shall have the same meaning and extend as in the Workmen's Compensation Act, 1923 (8 of 1923 ). (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. " According to sub-section 2 of Section 163-A the claimant is absolved from the liability to prove that the accident had occurred due to any "wrongful act" or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. Thus, this section merely relieves the claimant of a burden that would have been imposed upon him under the Evidence Act. However, the said section does not come to the rescue of the appellant as according to the Tribunal in his cross-examination A. W. 3 Subhash Yadav had clearly admitted that Mahipal was driving the motorcycle on the wrong side of the road, that he was driving in a rash and negligent manner. Thus, on the basis of cross- examination the Tribunal had concluded that negligence lay on the side of the deceased and not on the side of the offending vehicle. Merely because Section 163-A absolves the claimant of a responsibility, does not mean that it simultaneously denied the right to the Insurance Company to establish negligence on the part of the deceased. Therefore, the argument based on Section 163-A is untenable. The veracity of any witness has to be examined on the touchstone of the cross-examination. Since Subhash Yadav was produced as a witness on the side of the claimant, it is but expected that in his examination-in-chief he would support the case of the claimant. However, the truthfulness of this witness can only be decided on the basis of cross-examination made by the Insurance Company. As mentioned above in his cross-examination, he admits that Mahipal was not only driving on the wrong side of the road, but was also driving in a rash and negligent manner. He also admits that he did not see any tractor at the scene of the accident. Thus, whatever case was set up by the claimants, the bottom of their case falls apart in the cross-examination of Subhash Yadav. Although the Insurance Company may not have pleaded the negligence on the part of the deceased as defence, but nonetheless, the cross-examination of Subhash Yadav would permit them to raise the defence of the negligence of the deceased himself. After all, the law of pleading is not enforced in stricto senso before the Tribunal. Moreover, a benefit that the Insurance Company can derive from a cross-examination cannot be denied to it on the technical plea that no such defence was pleaded by them in the written statement. ;