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2013 DIGILAW 1288 (BOM)

Pukh Raj Bumb v. Jagannath Atchut Naik

2013-07-11

A.P.LAVANDE, U.V.BAKRE

body2013
Judgment :- U.V. Bakre, J. Parties were put on notice that the appeal would be finally disposed of at the stage of admission. Hence, the appeal is admitted. Heard forthwith. 2. Heard Mr. E. Afonso, learned Counsel appearing on behalf of the appellant(claimant), Mr. Shivan Dessai, learned Counsel appearing on behalf of the respondent no. 2(owner) and Mr. S. S. Kakodkar, learned Counsel appearing on behalf of the respondent no. 3(Insurance Company). 3. The above appeal and cross-objection are both directed against the judgment and award dated 21/11/2012 passed by the learned Presiding Officer, M.A.C.T., Mapusa (the Tribunal, for short) in Claim Petition No. 30 / 2011. 4. The facts giving rise to the appeal and cross-objection, in short, are as follows: The claimant had filed the said Claim Petition before the learned Tribunal under Section 166 of the Motor Vehicles Act, 1988 (M.V. Act, for short), for grant of compensation of Rs. 66,60,429/-, on account of injuries sustained by him, in the motor vehicular accident, which resulted into permanent disability. 5. The case of the claimant is as follows: On 21/04/2009, at about 10.30 a.m., the claimant was proceeding from Porvorim towards Panaji on his scooter bearing no. GDK-2593. When he had reached the main road NH-17 somewhere near the electric pole no. 11-D/F-2, the respondent no.1 came with the Hyundai Getz Car bearing no. GA-03-5791 from behind at a very high speed and in a rash and negligent manner to proceed towards Panaji and gave dash to the claimant's scooter. The impact of the dash was so severe that the claimant was thrown violently and sustained head and bodily injuries. He suffered permanent disability and is lying in the bed and has to be taken care of and looked after by attendant. The said car belonged to the respondent no. 2 and was insured with the respondent no. 3. 6. The claimant, who was then 67 years old, stated that he retired from Government service as IAS Officer and after retirement was pursuing legal profession and was earning about Rs. 25,000/-per month from legal practice. Under various heads mentioned in the petition, he claimed total compensation of Rs. 66,60,429/-. 7. The respondents no. 1 and 2 denied the case of the claimant and further stated that the accident had occurred due to negligence of the claimant. 8. The respondent no. 3 alleged that the respondent no. 25,000/-per month from legal practice. Under various heads mentioned in the petition, he claimed total compensation of Rs. 66,60,429/-. 7. The respondents no. 1 and 2 denied the case of the claimant and further stated that the accident had occurred due to negligence of the claimant. 8. The respondent no. 3 alleged that the respondent no. 1 was not holding valid and effective driving license and that the insurer of the scooter has not been impleaded as a party and that the claimant is himself responsible for the accident. 9. The claimant examined his wife and next friend Smt. Sushma Bumb as AW 1 and she produced the FIR dated 22/04/2009 at Exhibit 29, certificate of registration of the car at Exhibit 30, panchanama of the scene of accident/sketch at Exhibit AW1/A, receipts/bills at Exhibit AW1/C, disability certificate at Exhibit 31, discharge cards at Exhibit 32, CT Scan at Exhibit 33 and report from Neurosurgery Department at Exhibit 34. The claimant also examined one Smt Lalbi, a servant as AW2, Dr. Selvan, who gave treatment to the claimant as AW 3, Smt. Vijaya Madhale, who gave services of nurse to the claimant as AW 4, Shri Ramu Naik who gave massage and applied oil to the claimant as AW5 and lastly the Head Constable of Porvorim Police Station, Shri G. L. Martins, who lodged complaint on behalf of the State and upon registration of the FIR, investigated the case, as AW6. The respondent no.1 examined himself as RW1. 10. Upon analysis of the entire evidence on record the learned tribunal found that there is no eye witness examined by the claimant and the panchanama of the scene of accident and sketch cannot be looked into, as the same had not been proved. It further held that though the testimony of RW1 shows that the accident occurred due to the negligence of the claimant however since he has not taken any specific plea in written statement, his oral evidence has to be discarded since it is in variance of the pleadings. The tribunal therefore held that there is absolutely no evidence to prove rash and negligent driving by respondent no.1. It further held that in case the claimant had succeeded in proving the rashness or negligence on the part of respondent no.1, he would have been entitled to receive total compensation of Rs. The tribunal therefore held that there is absolutely no evidence to prove rash and negligent driving by respondent no.1. It further held that in case the claimant had succeeded in proving the rashness or negligence on the part of respondent no.1, he would have been entitled to receive total compensation of Rs. 15,38,650/-along with interest at the rate of 9% per annum from 18/05/2011 till the date of actual payment. 11. Aggrieved by the finding that rashness and negligence on the part of respondent no.1 is not proved and also by the quantum of compensation awarded by the learned tribunal, the claimant has filed the above First Appeal whereas aggrieved by the finding that in case the claimant had proved rashness or negligence of the respondent no.1, he would have become entitled for compensation of Rs. 15,38,650/-, the respondent no. 1 has filed the above cross-objection. 12. Before proceeding to decide the appeal and cross-objection on merits, it is necessary to decide about the maintainability of the appeal. The appeal has been filed through the wife and next friend of the claimant and Misc. Application No. 183/2013 has been filed praying therein to permit her to pursue the appeal. No reply is filed by the respondents resisting the application. But in the cross-objection, the respondent no. 3 has taken objection in respect of the same. 13. Mr. Afonso, learned Counsel appearing on behalf of the claimant, submitted that the claimant is 69 years old and is bed ridden with 91.5% permanent disability and therefore he should be permitted to be represented by his next friend who is none else than his wife and there is no conflict of interest between the appellant and his wife. He submitted that the application for appointment of next friend is supported by the affidavit of the wife. He pointed out that even the Claim Petition no. 30 of 2011 was filed through his next friend and wife without any objection from the respondents. In support of the application, the learned Counsel for the claimant has relied upon the judgment in case of “ Mathen Mathai V/s. General Manager, K.S.R.T.C. and others ” [AIR 1990 Kerala 92]. Learned Counsel appearing on behalf of the respondent no. 30 of 2011 was filed through his next friend and wife without any objection from the respondents. In support of the application, the learned Counsel for the claimant has relied upon the judgment in case of “ Mathen Mathai V/s. General Manager, K.S.R.T.C. and others ” [AIR 1990 Kerala 92]. Learned Counsel appearing on behalf of the respondent no. 3 contended that there is nothing on record to show that the claimant is of unsound mind and incapable by reason of any mental infirmity and therefore is not entitled to file the present appeal through his next friend. It has also been alleged that the claimant was not entitled to file Claim Petition through next friend. 14. In terms of Rule 300 of the Goa Motor Vehicles Rules, 1991, the provisions of order XXXII Rule 1 to 15 (both inclusive) are applicable to the Claim Petition. The Claim Petition was filed by the claimant through his wife and next friend Smt. Sushma Bumb. A separate application for permission to file and conduct the petition through wife and next friend was filed and even in the opening paragraph of the Claim Petition, it was stated that the petition was filed by the injured claimant's wife as the injured is bed ridden, totally incapable of managing his affairs, semi-conscious and unable to respond after having sustained injuries in the accident. Absolutely no objection was taken by any of the respondents to the maintainability of the claim petition before the learned tribunal. In the case of “ Mathen Mathai ” (supra), the learned Division Bench of Kerala High Court has held that the provisions of Order XXXII of C.P.C. are applicable to the proceedings before the Motor Accident Claims Tribunal. It has been held that in the case of a person who is disabled on account of the accident or is even otherwise disabled, it is imperative that his claim must be prosecuted before the tribunal and for that the tribunal is at liberty to devise appropriate procedure. In this view, the tribunal must be recognized to have power to invoke the provisions of Order XXXII of C.P.C. and this is necessary to do justice and to achieve the purpose for which the tribunal is constituted. We are in respectful agreement with the above observations of the Kerala High Court. In this view, the tribunal must be recognized to have power to invoke the provisions of Order XXXII of C.P.C. and this is necessary to do justice and to achieve the purpose for which the tribunal is constituted. We are in respectful agreement with the above observations of the Kerala High Court. In the present case, since the claimant has suffered grievous injuries and permanent disability to the extent of 91.5% and since he is bed ridden, he is unable to move out and take care of himself. He is stated to be semiconscious and unable to respond. Therefore, he can be taken to be a person with mental infirmity. We therefore allow the claimant to be represented by his next friend who is his wife. Misc. Civil application No. 183 of 2003 is allowed. 15. The claimant has filed Misc. Civil Application no. 317 of 2013 under Order XXXXI, Rule 27 of C.P.C. for leave to produce various additional documents, a list whereof is given therein and copies whereof are produced along with it. The respondent no. 3 has filed reply to above Misc. Application No. 317/2013, resisting the same on various grounds. 16. The learned Counsel appearing on behalf of the claimant invited our attention to the written statement of the respondent no. 1 wherein it is not disputed that he was driving the car. He further submitted that the occurrence of accident which caused grievous injury to the claimant has not been denied. He pointed out that the claimant sustained permanent disability of 91.5%, which fact is not disputed, and is now bed ridden. According to him, this shows the gravity of the impact. He took us through the deposition of RW1, the driver of the car, wherein he has stated that his car was proceeding slowly and the claimant suddenly turned his scooter from left side of the road to right side at the circle without giving indication or signal due to which the accident occurred. He canvassed that therefore, the respondent no. 1 had the last opportunity to avoid the accident by stopping the car as he had seen the claimant crossing the road. In support of the doctrine of 'last opportunity', the learned Counsel relied upon the case of “ Municipal Corporation of Greater Bombay V/s. Laxman Iyer and another ” [ (2003) 8 SCC 731 ]. 1 had the last opportunity to avoid the accident by stopping the car as he had seen the claimant crossing the road. In support of the doctrine of 'last opportunity', the learned Counsel relied upon the case of “ Municipal Corporation of Greater Bombay V/s. Laxman Iyer and another ” [ (2003) 8 SCC 731 ]. He further submitted that the panchanama of the scene of accident and sketch have been marked as Exhibit AW1/A and therefore they should be deemed to have been proved by consent. He further submitted that the claimant need not prove his case beyond reasonable doubt and that he has to establish the case by preponderance of probability. In this regard, he has relied upon \ “Bimla Devi and others V/s. Himachal Road Transport Corporation and others” reported in [ (2009) 13 SCC 530 ]. 17. The learned Counsel appearing on behalf of the claimant further submitted that the records clearly reveal negligence of the learned Advocate who conducted the case of the claimant before the learned tribunal. He submitted that the claimant has more bills and receipts pertaining to the expenses incurred by him and also the inspection report prepared by Motor Vehicles Inspector in respect of both the vehicles, which were not produced by the said Advocate. He also submitted that the claimant has incurred future expenditure after the date of the judgment. Relying upon “New India Assurance Co. Ltd., Vs Annakutty and others” (AIR 1993 Kerala 299), the learned Counsel urged that the claimant be permitted to produce all the additional documents enlisted in the Misc. Application No. 317/2013. He submitted that the parties should no suffer for the lapses on the part of their Counsel. In this regard he relied upon “ Rafiq and another V/s. Munshilal and another ” reported in [ (1981) 2 SCC 788 ]. He also relied upon “ Jai Prakash V/s. National Insurance Company Limited and others ” reported in [ (2010)2 SCC 607 ]. He submitted that the matter be remanded to the tribunal for giving opportunity to the claimant to adduce further evidence and to produce further documents. 18. Learned Counsel for the claimant further submitted that the compensation of Rs. He also relied upon “ Jai Prakash V/s. National Insurance Company Limited and others ” reported in [ (2010)2 SCC 607 ]. He submitted that the matter be remanded to the tribunal for giving opportunity to the claimant to adduce further evidence and to produce further documents. 18. Learned Counsel for the claimant further submitted that the compensation of Rs. 15,38,613/- awarded by the tribunal is not fair and reasonable considering the status of the appellant; the income which he was earning; expenses which he had incurred and the fact that he had suffered 91.5% permanent disability due to which he is bed ridden. 19. Mr. Dessai, the learned Counsel appearing on behalf of the respondent no. 2 invited our attention to the oral evidence of RW1, the respondent no. 1 and submitted that in his cross-examination, there is absolutely nothing but mere suggestions of denial of what has been stated by him in his affidavit-in-evidence. He contended that nothing had prevented the claimant to bring on record his specific case, in the cross-examination of RW1. He submitted that incompetence of the lawyer cannot be a ground for remand. According to him, even if additional evidence comes on record, everything would be useless since there is no eye witness and nothing in the cross-examination of RW1, He submitted that remand, in such circumstances, would open flood gates. 20. Mr. Kakodkar, learned Counsel appearing for the respondent no. 3 submitted that there is absolutely no evidence on record produced by the claimant to prove the rashness and negligence on the part of the respondent no.1 or even to show as to how the accident had occurred. He submitted that panchanama of the scene of accident and the sketch have not been admitted in evidence and even otherwise the contents of the same have not been not proved since none of the pancha witnesses has been examined and the Investigating Officer has not even referred to the same. He submitted that the doctrine of 'last opportunity' is no more in force. Insofar as the production of additional documents is concerned, the learned Counsel submitted that the application filed for the same does not fulfill the ingredients of Order XLI Rule 27 of CPC. He submitted that there is nothing to show as to why the claimant could not produce the said documents earlier. Insofar as the production of additional documents is concerned, the learned Counsel submitted that the application filed for the same does not fulfill the ingredients of Order XLI Rule 27 of CPC. He submitted that there is nothing to show as to why the claimant could not produce the said documents earlier. He submitted that in terms of Rule 300 of Goa Motor Vehicles Rules, 1991, the provisions of Civil Procedure code are applicable and therefore the principles underlying Order XLI Rule 27 are bound to be considered. He submitted that merely because Advocate for the claimant did not conduct the case well, that cannot be the ground for remand of the case. Insofar as the compensation of Rs. 15,38,650/- awarded by the learned tribunal is concerned, the learned Counsel submitted that the same is without any basis. According to him, disability certificate has not been proved since the doctor has not been examined. He further submitted that various bills and receipts have not been proved by examining the authors of the same. According to him even the calculation of the amount of all the bills is not correct. He also submitted that there is no legal evidence towards assessment of Rs. 1,00,000/- as future medical expenses. According to him, excessive and exorbitant compensation has been awarded without any legal basis. He therefore urged that the appeal is liable to be dismissed and the cross-objection deserves to be allowed. 21. The learned Counsel appearing on behalf of the respondent no. 3 has relied upon the following judgments: (i) ZennaSorabji and others v/s. Mirabelle Hotel Co. (Pvt.) Ltd. and others. [AIR 1981 Bom.446] (ii) Om Prakash Berlia and another v/s. Unit Trust of India and others [AIR 1983 Bombay 1] (iii) Narbada Devi Gupta V/s. Birendra Kumar Jaiswal and another [ (2003) 8 SCC 745 ] (iv) BamaKathari Patil v/s. Rohidas Arjun Madhavi and another [2004 (2) ALL MR 290] (v) Municipal Corporation of Greater Bombay v/s. Laxman Iyer and another [ (2003) 8 SCC 731 ] 22. We have gone through the material on record and considered the submissions made by the learned Counsel for the parties and all the judgments cited by them. 23. The main point for determination is whether the claimant has proved that the accident occurred due to the rash and negligent driving of the respondent no. 1. 24. We have gone through the material on record and considered the submissions made by the learned Counsel for the parties and all the judgments cited by them. 23. The main point for determination is whether the claimant has proved that the accident occurred due to the rash and negligent driving of the respondent no. 1. 24. There is no dispute that strict proof of the accident may not be required to be given by the claimants and the claimant can prove his case by preponderance of probability. In the case of “ Bimla Devi ” (supra), the Apex Court has held that strict proof of the accident caused by a particular bus in a particular manner may not be possible to be given by the claimants. It has been held that the claimants have to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. In the case of “ Jai Prakash”(supra), the Apex Court has observed that many tribunals instead of holding an inquiry into the claim by following suitable summary procedure, as mandated by Sections 168 and 169 of the M.V. Act, tend to conduct motor accident cases like regular civil suits. This should be avoided. The tribunal shall take an active role in deciding and expeditious disposal of the applications for compensation and make effective use of Section 165 of the Evidence Act, 1872, to determine the just compensation. There is no quarrel about the principles laid down in the above cases. In the present case there is no dispute that the accident occurred, in which the claimant sustained grievous injuries and permanent disability. But a person cannot automatically become entitled to compensation on the ground that an accident has taken place. In the present case, there is also no dispute that the said car was driven by respondent no. 1 at the time of accident. However, that does not mean that the claimant need not prove that the accident had occurred due to the rashness and negligence of the respondent no. 1. It is well settled that proof of negligence of the driver of the vehicle is necessary before the owner or insurer of that vehicle is held liable for payment of compensation. However, that does not mean that the claimant need not prove that the accident had occurred due to the rashness and negligence of the respondent no. 1. It is well settled that proof of negligence of the driver of the vehicle is necessary before the owner or insurer of that vehicle is held liable for payment of compensation. In the case of “ Minu B. Mehta and another v/s. Balkrishna Ramchandra Nayan and another ” [ AIR 1977 SC 1248 ], the Apex Court has held thus: “The liability of the owner of the car to compensate the victim in a car accident due to the negligent driving of his servant is based on the law of tort. Regarding the negligence of the servant, the owner is made liable on the basis of vicarious liability. Before the master could be made liable it is necessary to prove that the servant was acting during the course of his employment and that he was negligent. Under S. 95(1)(b)(i), it is required that policy of insurance must be a policy which insures the person against any liability which may be incurred by him in respect of death or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. The insurance policy is only to cover the liability of a person which he might have incurred in respect of death or bodily injury. The accident to which the owner or the person insuring is liable is to the extent of his liability in respect of death or bodily injury and that liability is covered by the insurance. Therefore if the owner has not incurred any liability in respect of death or bodily injury to any person there is no liability and it is not intended to be covered by the insurance. The expression “liability which may be incurred by him” is meant as covering any liability arising out of the use of the vehicle. A person is not liable unless he contravenes any of the duties imposed on him by common law or by statue. In the case of a motor accident the owner is only liable for negligence and on proof of vicarious liability for the acts of his servant. A person is not liable unless he contravenes any of the duties imposed on him by common law or by statue. In the case of a motor accident the owner is only liable for negligence and on proof of vicarious liability for the acts of his servant. Proof of negligence is therefore necessary before the owner or the insurance company could be held to be liable for the payment of compensation in a motor accident claim case.” 25. Thus, keeping in mind that the standard of proof is 'preponderance of probabilities' and not 'beyond reasonable doubt', let us see if negligence of the respondent is proved. 26. In the present case, the claimant has examined his wife and next friend, as AW1. In her cross examination, AW1 has specifically stated that she did not personally witness the accident and that she was at home at that time. Therefore, admittedly she is not an eye witness. The claimant has not examined any eye witness or any witness speaking about the cause of the accident. 27. AW1 has produced on record the FIR as Exhibit 29. This FIR has been registered upon the complaint lodged by Head Constable Shri G. L. Martins (AW 6). AW6 has merely deposed that he investigated the case and lodged the FIR. The contents of the complaint lodged by AW 6 have not been proved. AW 6 has not stated as to what investigation he carried out and what was his conclusion. 28. AW 1 has also produced the panchanama of scene of accident and sketch as Exhibit AW 1/A. However the claimant has not examined the panch witnesses or any of them to prove the contents of the said panchanama. Unfortunately, even the Investigating Officer, AW6, has not stated the details of this panchanama/Sketch. The submission of the learned Counsel for the claimant that since the panchanama and sketch have been marked as Exhibit AW 1/A, the same are to be taken as proved, is a misconceived submission and not acceptable. In the case of “ Narbada Devi Gupta” (supra), the Apex Court has held that mere production and marking of a document as exhibit is not enough. It has been held that execution of the said document has to be proved by admissible evidence. In the case of “ Narbada Devi Gupta” (supra), the Apex Court has held that mere production and marking of a document as exhibit is not enough. It has been held that execution of the said document has to be proved by admissible evidence. Where the documents produced are admitted by the signatories thereto and then marked as exhibits, then no further burden to lead additional evidence to prove the writing and its execution survives. In the case of “ Om Prakash Berlia ”(supra) it has been held that truth of the contents of the document, even prima facie, cannot be proved by merely producing the document for inspection of the Court. It has been held that the writer of a document must depose to the truth of the contents. In the case of “ Zenna Sorabji ” (supra), it has been held that when a document is to be proved and relied upon in evidence, there are three aspects to be considered by the Court, viz (i) the proof of the execution of the document, (ii) proof of the contents of the document, and (iii) the evidentiary value of the document as a whole. When a party consents to the document being exhibited, all that can be imputed to him of having admitted is the proof of the execution. The proof of its execution does not invest the document with any probative or evidentiary value if otherwise it has none. A proof of a document is something which is independent from the evidentiary value of the document. Moreover by consent, proof of the document may be dispensed with, but if the document is intrinsically inadmissible in evidence no amount of consent by any party can confer the status of admissibility upon the said document. In view of the above, the learned tribunal has rightly held that the panchanama of the scene of accident/sketch cannot be looked into since the same is not proved. 29. Learned Counsel for the claimant tried to draw support from the testimony of the driver (RW1), by contending that since RW1 was proceeding slowly and had seen the claimant having suddenly turned his scooter to the right from the left of the road, he had the last opportunity to stop his car and avoid the accident and having not done so, he acted negligently. In the case of “Municipal Corporation of Greater Bombay” (supra), it has been observed that the doctrine of 'last opportunity' is said to have emanated from the principle enunciated in Davies V. Mann (152 ER 588) which has often been explained as amounting to a rule that when both parties are careless the party which has the last opportunity of avoiding the results of the other's carelessness is alone liable. However, it has been further observed in the case supra that according to Lord Denning the principle of 'last opportunity' is not a principle of law, but a test of causation. It is further observed that though in some decisions, the doctrine has been applied by courts, however, after the decisions of the House of Lords in 'Volute'[(1922) 2 KB 291] and 'Swadling v. Cooper'(1931 AC 1), it is no longer to be applied. Be that as it may, rule of 'last opportunity' comes into play in the field of contributory negligence. RW 1, the driver of the car, in his testimony, has stated as to how the accident occurred. According to him, he was proceeding slowly but on the slope of the approach road to the bridge on the Porvorim side, the claimant suddenly changed the lane and moved from the left to his right without giving any indication and that RW1 applied brakes but by then the scooter touched the front bumper of the car and fell on the road. Thus, the testimony of RW 1 does not reveal contributory negligence. It is nobody's case that both the parties were careless. Hence, the principle of 'last opportunity' is not applicable. 30. A perusal of the written statement of the respondent no. 1 reveals that he has merely denied each and everything that is averred in the Claim Petition. The respondent no. 1 has not specifically pleaded his own case in the written statement. Therefore, as has been held by the tribunal, the testimony of RW1 is bound to be discarded since it is in variance with the pleadings. 31. It is not known as to why the panch witnesses to the panchanama of the scene of accident/sketch have not been examined. It is not known as to why accident report forms which are sought to be produced now in appeal were not produced in the Claim Petition. 31. It is not known as to why the panch witnesses to the panchanama of the scene of accident/sketch have not been examined. It is not known as to why accident report forms which are sought to be produced now in appeal were not produced in the Claim Petition. Lastly, it is also not known as to why the Investigating Officer was not asked about all the investigation which he carried out and about the conclusion which he arrived at upon completing the investigation. In the case of “ Rafiq and another” (supra), it has been held that contesting parties should not suffer for lapses on the part of their counsel. The above principle cannot be disputed. However, in the case supra, there was ex-parte order of dismissal of appeal passed by the High Court on account of non-appearance of appellant's Counsel on the date of hearing. Even the application made by the counsel for recalling the order and for permission to participate in the hearing of the appeal was rejected on ground of unexplained delay in presenting the application to the Court. In the circumstances above, the Hon'ble Supreme Court held that the rejection of the application was not justified as the party should not suffer for the inaction, deliberate omission or misdemeanour of his agent, the lawyer. In the present case, the facts are totally different. The lawyer of the claimant was present throughout the case and had conducted the same. The case has not failed on account of absence of the lawyer but on account of lack of evidence on the question of rashness and negligence of the driver. As has been rightly submitted by the learned Counsel for the respondent mere incapability of the lawyer cannot be a ground for remanding the case to the tribunal. If the same be done so casually, that would open a floodgate to remand of cases. We do not see any reason for remanding the case in order to give a second inning to the claimant. 32. If the same be done so casually, that would open a floodgate to remand of cases. We do not see any reason for remanding the case in order to give a second inning to the claimant. 32. The circumstances of the present case are such that even if the panchanama of the scene of accident/sketch are proved by examining the panch witnesses and by re-examining the Investigating Officer and if the accident report forms are allowed to be produced and proved through the Motor Vehicles Inspector, still considering the position of vehicles as shown in the sketch and damages to both the vehicles as mentioned in the accident reports, the same would not help the claimant unless there is any eye witness to the accident. In the circumstances above, even otherwise, remand would not be fruitful. We are not inclined to remand the case to the learned tribunal. 33. We are aware of the loss suffered by the claimant due to injuries sustained in the unfortunate accident which took place. We have sympathy for the claimant. However, sympathy cannot take place of proof of negligence. We find that the claimant has miserably failed to prove that the accident occurred due to the rash and negligent driving of the Hyundai Getz Car bearing no. GA-03-C-5711 by the respondent no.1. Since the negligence of the driver is not proved, the claimant is not entitled to receive any compensation on the ground of injuries resulting in permanent disability, sustained by him, as has been rightly held by the learned tribunal. 34. The impugned judgment and award dismissing the claim petition is in accordance with the settled principles of law and no interference with the same is warranted. 35. Since the appeal is being dismissed, there is no need to go into the question of quantum of compensation. Further, there is also no need to deal with the question of leave to produce additional documents or with the cross-objection filed by the respondent no. 3. The application (M.C.A. No. 317/2013) and the cross-objection no. 9/2013, are infructuous. 36. In the result, the First Appeal No. 32 of 2013 is dismissed. Misc. Civil application No. 317 of 2013 and cross-objection no. 9 of 2013 are also dismissed as infructuous. In the facts and circumstances of the case, parties shall bear their own costs.