D. K. Jain ( 1 ) THIS first appeal under section 110-D of the Motor Vehicles Act, 1939 (in short the Act ) arises out of an award dated 27th January, 1981, in Suit No. 228 of 1979 made by the Motor Accidents Claims Tribunal, Delhi (for short the Tribunal ). The appeal is filed by the claimants, the legal representatives and dependants of Nand Kishore Gupta, who died on account of injuries sustained by him in the accident in which a double decker bus, driven by Sahdev, respondent No. 2 and belonging to Delhi Transport Corporation, respondent No. 1, was involved. ( 2 ) THE facts of the case, as stated in the claim petition, are that on 15th December, 1972, at about 11. 30 a. m. , Nand Kishore Gupta was going for his duty on Desh Bandhu Gupta Road, onp a Vicky moped. When he reached opposite Water Pump House on the left hand side of the road, he was hit from behind by a double decker bus No. DLP 87 driven rashly and negligently by the second respondent. As a result of the impact, Nand Kishore fell down and the left front wheel overran his head resulting in his instantaneous death. The deceased, employed as copyist with Ministry of Finance, Deptt. of Expenditure, drawing Rs. 378. 04 per month, was stated to be aged about 32 years at the time of his death. He left behind his widow aged about 30 years and three minor children aged 12, 7 and 5 years, the appellants herein. ( 3 ) THE claim petition under section 110-A of the Act was filed on 18th January, 1973, making a claim of Rs. 1,00,000. 00 against the respondents. The claim was resisted by both the respondents, who filed a joint written statement, denying the manner in which the alleged accident took place. ( 4 ) ON the pleadings, issues were framed and evidence was led by both the parties. The Tribunal came to the conclusion that the evidence adduced showed rashness and negligence not on the part of the bus driver but on the part of the deceased, who was overtaking the bus from the wrong side and not keeping safe distance from the bus and the taxi, which was also claimed to be involved in the accident. Upon these findings, the claim petition has been dismissed. Upon these findings, the claim petition has been dismissed. However, merely for the purpose of recording a finding on issue No. 5 (amount of compensation payable to the claimants) the Tribunal has concluded that award of Rs. 51,340. 00 would be just and fair. Since the claim has been dismissed, no relief has been granted to the appellants. It is this award which is under challenge in this appeal. ( 5 ) MR. O. P. Goyal, learned counsel for the claimants, has strenuously urged that from the available evidence, the Tribunal should have held that respondent No. 2 was rash and negligent in driving, causing fatal accident. He also submits that compensation determined by the Tribunal is not adequate in that lower multiplier of 20 has been applied and deduction on account of pension has been wrongly made. He further submits that the Tribunal should have awarded interest even though the same was not claimed in the petition. ( 6 ) I have heard learned counsel for the parties and have perused the relevant evidence on record. The first crucial question, which falls for consideration, is whether the accident occurred because of rash and negligent driving of the offending bus by respondent No. 2. ( 7 ) WHILE concluding that no rashness or negligence could be attributed to the driver, respondent No. 2, the Tribunal has accepted the version of the respondents as set out in the written statement. The respondents have sought to explain that when the bus was climbing the steep ascent of Desh Bandhu Gupta Road towards Pahar Ganj, the driver spotted a taxi standing ahead of him. When the bus was overtaking the stationary taxi, the deceased came from behind and attempted to overtake the taxi from in between the bus and the taxi (the bus being on his right hand and the taxi on the left) and at that stage the driver of the taxi abruptly opened his door and as a result thereof, the deceased struck against the door of the taxi, lost his control over the moped, fell down and struck against the middle portion of the bus; his head came under the left rear wheels and was crushed. The Tribunal has, thus, found that the real culprit was the person who opened the door of the taxi all of a sudden, giving no time to the deceased to save himself. The Tribunal has, thus, found that the real culprit was the person who opened the door of the taxi all of a sudden, giving no time to the deceased to save himself. The Tribunal has also observed that the deceased cannot also be exonerated from negligence as he was also overtaking the bus from a wrong side and not keeping safe distance from the taxi as well as the bus. While arriving at the aforesaid findings, the Tribunal has heavily relied on the testimony of the Investigating Officer, Amar Nath, Public witness 10. ( 8 ) THE witnesses, namely, Public witness 2 Vijender Singh and Public witness 3 Birham Singh Tyagi, were produced by the claimants as eye-witnesses. Both purport to support claimants case. Vijender Singh, while supporting the version of the claimants, stated that when he was going from Jhandewalan to Dev Nagar on foot he saw a moped and double decker bus coming in the same direction; there was little distance in between Vicky moped and the bus; the bus was fast; left portion of the trolly struck the left portion of the driver of the moped, he fell down, the trolly passed but the left portion of the bus ran over the head of the moped driver; the bus stopped at a distance of 10/15 paces; he waited at the spot for about 40 minutes but his statement was not recorded. In his cross-examination he deposed that he was a resident of Sarai Rohilla and was working as a Teacher in Dev Nagar. On the fateful day he had gone to see some friend at Pahar Ganj C. G. H. S. Dispensary at about 8 a. m. and watched the accident near Jhandewalan when he was going to the school from Paharganj on foot. He has denied the suggestion about the presence of a taxi at the site. ( 9 ) I have carefully gone through his statement and feel that it is unnatural and does not inspire confidence. He has denied the suggestion about the presence of a taxi at the site. ( 9 ) I have carefully gone through his statement and feel that it is unnatural and does not inspire confidence. From C. G. H. S. Dispensary to Dev Nagar the distance is about 4 kilometres and he prefers to go on foot instead of taking a bus and he admits that the police station is on his way to the school, but does not consider it necessary to lodge a report in the police station despite the fact, as per his averment, he waited at the accident site for about 40 minutes and the policeman who reached the spot had declined to record his statement. All these factors leave little room for doubt that he was not present at the site when the fatal accident took place. ( 10 ) SIMILARLY, the statement of Public witness 3 Birham Singh Tyagi, supporting the claimants version, lacks credence. The witness claims that he was sitting in the centre of the upper deck of the double decker bus and all seats ahead of himwere occupied. His sitting position makes it highly improbable, if not impossible, for him to see the front portion of the trolly striking against the deceased from behind. Sitting in such a position, I feel, he could not also see as to what was happening on the left side of the bus, where the deceased is stated to have struck against. Besides, his sudden alleged reappearance at the mortuary in the evening at about 4 p. m. , when the post-mortem of the deceased was being done, and his narration of the morning to father of the deceased is also not free from doubt. He appears to be a chance witness and his testimony carries little conviction. Kanwar Lal, stated to be another eye-witness, as per investigation, has not been produced by the claimants-appellants. ( 11 ) AS against this, the respondents examined the driver and the conductor of the bus. Both of them have reiterated that the deceased came under the rear wheels after he had hit the door of the taxi. The driver, RW 1, has deposed that the passengers had made a note in the complaint book, kept in the bus, about the manner in which the accident had taken place. Both of them have reiterated that the deceased came under the rear wheels after he had hit the door of the taxi. The driver, RW 1, has deposed that the passengers had made a note in the complaint book, kept in the bus, about the manner in which the accident had taken place. The complaint book was produced in the criminal trial of respondent No. 2, but could not be produced before the Tribunal as the same has been destroyed in fire in the criminal courts. The conductor, RW 2, has also deposed on similar lines. Their version derives support from the testimony of the Investigating Officer, Public witness 10. ( 12 ) IT is well settled that the onus of proving negligence lies upon the party who alleges it and it was incumbent upon the claimants to establish that the death was caused by rashness and negligence on the part of the bus driver, respondent No. 2. In my view, from the testimony of the aforesaid two witnesses it cannot be successfully established or even argued that the accident was caused due to rash and negligent driving of the bus by respondent No. 2. ( 13 ) THUS, there being no cogent direct evidence to conclude rash and negligent driving by the driver of the bus, respondent No. 2, one is left guessing and has to scan the circumstantial evidence to see if there is anything to show that the bus had run over the deceased or the deceased had run against the bus. On the point, I am in complete agreement with the observations of the learned Tribunal that in the present case attending circumstances assume great significance, for men may lie but circumstances would not. If the deceased had been hit from behind by the front left side of the trolly, as contended by the claimants, the deceased could have been thrown either on the left or the right hand side of the bus or would have fallen in front of the bus. In either of the situations, it seems difficult to comprehend that the front wheels of the bus on either side would not have crushed and even dragged him, particularly when there is no evidence on record to suggest that the bus swerved on either side. This did not happen and admittedly the head of the deceased was crushed under the rear left wheels. This did not happen and admittedly the head of the deceased was crushed under the rear left wheels. Therefore, the sum total is that even if it is assumed for the sake of argument that there was no taxi, as alleged by the respondents, the presence of some other foreign element with which the deceased had some impact and as a result whereof he fell and came under the rear wheels, cannot be ruled out. This is a strong probability. I do not find any infirmity or illegality in the finding of the learned Tribunal that the accident was not caused due to rash and negligent driving of the bus. I have, therefore, no hesitation in upholding the same. ( 14 ) IN this view of the matter, it is not necessary to go into the question of adequacy of the compensation computed by the learned Tribunal. ( 15 ) IN the circumstances, the appeal fails and is accordingly dismissed with no order as to costs.