JUDGMENT AND ORDER : 1. Heard Ms. S. Choudhury, learned counsel appearing for the claimant-appellants as well as Mr. P. Gautam, learned counsel appearing for the respondent No. 2, National Insurance Company Limited. None appears for the respondent No. 1 despite due notice from this Court. 2. This is an appeal under Section 173 of Motor Vehicle Act, 1988 from the judgment dated 18.05.2016 delivered in T.S. (MAC) No. 135 of 2011 by the Motor Accident Claims Tribunal, No. 3, West Tripura, Agartala. By the said judgment the claim raised by the claimant-appellants for death of one Subhas Chandra Das in road traffic accident under Section 166 of the Motor Vehicle Act, 1988 was dismissed holding inter-alia that the claimant-appellants failed to prove that the road traffic accident that occurred on 30.01.2011 at about 9.00 to 9.30 a.m. near Gokulnagar B.S.F. camp on Agartala- Bishalghar road under Bishalghar Police Station did not happen for rash and negligent driving of the vehicle bearing No. TR-01-U-0215 [TATA Indica]. 3. There is no dispute that on 30.01.2011 the said vehicle was under valid insurance coverage provided by the respondent No. 2 herein. The Tribunal, after considering the evidentiary materials as placed by the claimant-appellants, came to a definite finding that the accident has not been proved to have occurred for rash and negligent driving and as such no compensation under Section 166 of the Motor Vehicle Act can be awarded for such compensation the tortious liability can only emerge from negligence. Unless negligence is pleaded and proved, tortious liability cannot emerge nor damage can be assessed for purpose of granting compensation 4. Ms. S. Choudhury, learned counsel while questioning the said finding has submitted that the finding is entirely mechanical and has emanated for non-appreciation of some material documents which were introduced by claimant-appellants in the record of the evidence. Ms. Choudhury, learned counsel has submitted that on 29.03.2011 one Sentu Das reported the said road traffic accident to the Officer-In-Charge, Bishalgarh police station by giving an explanation that since he was busy with treatment of Subhas Chandra Das since deceased, the elder brother of the said informant, the information could not be lodged immediately after the occurrence. The documents like the certificate for handicapped person as issued by the locomotor specialist has also been introduced in the evidence as part of the Exhibit-1 series. The documents like the certificate for handicapped person as issued by the locomotor specialist has also been introduced in the evidence as part of the Exhibit-1 series. The discharge summary as issued by the Kothari Medical Centre is also introduced by the petitioner but the said certificate was not admitted in the evidence. However, the referral certificate of the Standing Medical Board of the Government of Tripura has been admitted in the evidence as part of Exhibit-1 series “the injured was suffered from traumatic paraplegia and is under treatment at A.G.M.C. and G.B.P. hospital, Agartala.” The injured was referred to S.S.K.M. hospital Kolkata. In the said discharge certificate also there is no reference to the road traffic accident. Similarly from the discharge certificate dated 28.06.2011 issued by the Tripura Medical Collage and Dr. B.R. Ambedkar Memorial Hospital it cannot be found that anyone reported that the injuries were from the road traffic accident. The patient was diagnosed as “L1 paraplegic & Bed Sore.” From the certificate for handicapped person it appears further that the deceased suffered paraplegia lower left of the body due to RTA. The said certificate was issued on 16.11.2011. Ms Choudhury, learned counsel has pointed out that in the G.D. the information that was filed on 29.03.2011 was entered. In that information, it has been stated that the offending vehicle, which was being driven violently, dashed the deceased and he was taken to the Bishalghar hospital in a critical condition. No record from the Bishalghar hospital has been produced in the Tribunal or in the appellant proceeding. 5. Mr. P. Gautam, learned counsel appearing for the Insurance Company has emphatically submitted that there is no evidence that person who have ultimately died, had so died for fatal impact of a road traffic accident. He has further submitted that not only the First Information was lodged in the police station almost after 3(three) months, but from the hospital where the injured person was taken immediately after the accident no record has been produced to show that he suffered the trauma from the road traffic accident. They merely mentioned as trauma and/or paraplegia. Mr. Gautam, learned counsel has submitted that the discharge summary of the Kothari Hospital is not the part of the evidence, it was only submitted with the records. They merely mentioned as trauma and/or paraplegia. Mr. Gautam, learned counsel has submitted that the discharge summary of the Kothari Hospital is not the part of the evidence, it was only submitted with the records. Though in the paper book, it has been shown under Exhibit-1 series, but nowhere in the documents such mark is available. Mr. Gautam, learned counsel has submitted that whether the death has occurred from the motor accident or not, there is no postmortem certificate and no medical opinion and as such, this Court may not reverse the finding as returned by the Tribunal. Further, he has submitted that on the basis of the G.D. no police investigation was carried out and this shows there was no rash and negligent act involving the vehicle as mentioned in the claim petition. 6. In reply to the submissions made by the Mr. Gautam, learned counsel Ms. S. Choudhury learned counsel has referred a decision of the Apex Court in Kusum Lata and Others vs. Satbir and Others, (2011) 3 SCC 646 . The passages as reproduced under are relied by Ms. S. Choudhury, learned counsel in support that the evidence that has been introduced is sufficient to come to the conclusion that there was a road traffic accident and that occurred for rash and negligence driving: (5) Admittedly, the facts were that the brother of the deceased, Ashok Kumar while walking on the road heard some noise and then saw that a white-coloured tempo had hit his brother and sped away. Immediately, he found that his brother, being seriously injured, was in an urgent need of medical aid and he took him to the hospital. Under such circumstances it may be natural for him not to note the number of the offending vehicle. That may be perfectly consistent with normal human conduct. Therefore, that by itself cannot justify the findings reached by the Tribunal and which have been affirmed by the High Court. (6) In the present case, evidence has come on record from the deposition of one Dheeraj Kumar, who clearly proved the number of the vehicle. The evidence of Dheeraj Kumar is that he was going along with one Ashok Kumar on a scooter to know the condition of one of their relatives in Mahendergarh Hospital. (6) In the present case, evidence has come on record from the deposition of one Dheeraj Kumar, who clearly proved the number of the vehicle. The evidence of Dheeraj Kumar is that he was going along with one Ashok Kumar on a scooter to know the condition of one of their relatives in Mahendergarh Hospital. As they reached the turning at Mahendergarh Road a tempo bearing No. HR-34-8010 of white colour being driven in a rash and negligent manner came from behind and overtook their scooter. Dheeraj kumar was not driving the scooter. Dheeraj Kumar saw that the tempo hit Surender, the victim, as a result of which he fell down but the tempo did not stop after the accident. However, the evidence of Dheeraj Kumar is that they followed the same and caught the driver. On their asking, the driver disclosed his name as Satbir, son of Shri Ram Avtar. Thereafter, they went to Mahendragarh Hospital and on the next day when they were returning, they found police and other persons were present at the spot. Dheeraj Kumar told the name of the driver and give the number of the tempo to the police. Dheeraj Kumar claims to have seen the incident with his own eyes. 7. Ms. Choudhury, learned counsel has placed her reliance on paragraphs 9 and 10 from Kusum Lata (supra) which read as under: 9. There is no reason why the Tribunal and the High Court would ignore the otherwise reliable evidence of Dheeraj Kumar. In Fact, no cogent reason has been assigned either by the Tribunal or by the High Court for discarding the evidence of Dheeraj Kumar. The so-called reason that as the name of Dheeraj Kumar was not mentioned in the FIR, so it was not possible for Dheeraj Kumar to see the incident, is not a proper assessment of the fact situation in this case. It is well know that in a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind. 10. It is well know that in a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind. 10. Reference in this connection may be made to the decision of this Court in Bimla Devi vs. Himachal RTC, (2009) 13 SCC 530 , in which the relevant observation on this point has been made and which is very pertinent and is quoted below: (SCCp.534, para 15) 15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The Claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties. 8. Further reliance has been placed on R.P. Gautam vs. R.N.M. Singh and Another, AIR 2008 Madhya Pradesh 68, where the Madhya Pradesh High Court had occasion to observe as under: 13. It is settled proposition of law that every civil case is decided on it's own facts and evidence with out influencing the papers and decisions of the criminal case. In such premises registration of the offence and police investigation is not a condition precedent for awarding the claim. Besides this due to one reason or another if the first information report of vehicular accident is not lodged with the police or the same was given at later stage and police neither registered the offence nor investigated the same, it does not mean that right of the victim for compensation who suffered the vehicular accident is washed away. The victim remains entitled for compensation on proving the facts and circumstances regarding such accident and factum of injuries sustained by him, he could not be deprived from such right, provided by the Motor Vehicles Act, although such compensation may be awarded only on proving all relevant facts with all probabilities. 9. For purpose of analogy as made in R.P. Gautam (Supra) the passage as under is also reproduced: 14. 9. For purpose of analogy as made in R.P. Gautam (Supra) the passage as under is also reproduced: 14. Therefore, it is held that first information report or police investigation is not always condition precedent for awarding the claim. Claim could be awarded if the same is proved by admissible evidence with all probabilities. The claim case or its victim could not be left in every case on the mercy of the police. The Court is empowered to examine and adjudicate the case on available evidence, even in those cases in which the police neither registered the offence nor investigated the same, In Vehicular accident it could not be expected from the victim that before taking treatment he will go and lodge the report with the police. In such matter priority is always given to the treatment. All these circumstances must be considers with justice oriented approach. Although in the case at hand the appellant gave a report in writing (Ex.P.1) to the police at belated stage. Such report is also having some endorsement regarding its receipt, In view of the aforesaid MLC report in which the history of the case, motor vehicle accident is mentioned the report appears to be bona fide. The same is also supported by the discharged cards of hospitals and papers of treatment. In such premises merely on account of non-registration of the offence his case could not be thrown away. Even after registration of the offence the paper of such investigation could not be treated as substantive evidence for claim case. 10. Ms. Choudhury, learned counsel has further relied on the decision of this Court in Rampati Chakma vs. Sunil Kumar Ram and Others [Judgment dated 01.09.2016 delivered in MAC APP. No. 07 of 2012] where it has been observed as under: 5. Assailing the findings of the Tribunal, Mr. 10. Ms. Choudhury, learned counsel has further relied on the decision of this Court in Rampati Chakma vs. Sunil Kumar Ram and Others [Judgment dated 01.09.2016 delivered in MAC APP. No. 07 of 2012] where it has been observed as under: 5. Assailing the findings of the Tribunal, Mr. P.K. Biswas, the learned senior counsel for the appellant-claimants, submits that the approach of the learned member of the tribunal in appreciating the evidence adduced by the claimants is absolutely erroneous and betrays ignorance of the settled law that a claim petition is to be decided on its own facts and evidence without being influenced by the findings recorded in a criminal the eye witness to the incident, has remained unshaken, nay, not even contradicted, When PW-2 has categorically described in graphic details the manner in which the deceased was knocked down by V-1, which was moving backward recklessly, contends the learned senior counsel, there was absolutely no reason for the the Tribunal to disbelieve the case of The claimants that it was the vehicle of the respondents No. 1 which caused the death of the deceased in the vehicular accident. He relies on the decisions of the Apex Court in Kusum Lata vs. Satbir, (2011) 3 SCC 646 and the decision of the Madhya Pradesh High Court in R.P. Guatam vs. R.N.M Singh, AIR 2008 MP 68 to fortify his submissions. He further submits that since the occupation and income of the deceased have not even been questioned by the respondents, the appellants are entitled to compensation determined in accordance therewith. It is, therefore, contended by the learned senior counsel that the impugned judgment awarding nil award, being based on perverse findings, is not sustainable in law, and is liable to be set aside. 11. Ms. Choudhury, learned counsel has reiterated the ratio in Bimala Devi and Others vs Himachal Road Transport Corporation and Others, (2009) 13 SCC 530 , where it has been held by the Apex Court as under: 15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The Claimants were merely to establish their case on the touchstone of preponderance of probability. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The Claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. 12. After perusing all the decisions, two general principles of law that emerged are as under: 1. Even the Tribunal can come to a finding about the road traffic accident or rash and negligent driving or negligence in absence of any investigation report or First Information Report (FIR). 2. There should be sufficient evidence to meet the standard of preponderance of the probability to arrive at such findings. 13. In this case, even though there was a G.D. entry made in respect of the accident, but it is apparent from the records that the claimant-appellants have not pursued the trial of the matter to know whether any police case has been registered or further action has been taken by the police. Even at the stage of recording evidence, no such endeavour is noticeable. Therefore, the Tribunal has to go by the evidence as produced before it, to find sine qua non of the claim i.e., negligence under Section 166 of the Motor Vehicle Act. No effort has surfaced that there was road traffic accident and the driving was negligent. 14. There should be adequate evidence in respect of the negligence, else no claim could be or can be entertained by the Tribunal. The only person who has been examined for and on behalf of the claimant-appellants is one Baby Das. Admittedly, she did not see the occurrence. For purpose of reference, it would be pertinent to make the summary of her statements made in the Tribunal. She stated that the victim namely Subhas Chandra Das filed the petition for compensation for sustaining injuries, due to road traffic accident occurred on 30.01.2011. After the said accident, her husband was brought first to the Bishalghar Hospital and thereafter he was brought to the G.B.P. Hospital, Agartala wherein he had undergone the treatment for considerable period. Thereafter her husband was refered to S.S.K.M. Hospital, Kolkata for better treatment. After few days, she brought her husband from Kolkata and thereafter her husband was admitted in the Kothari Medical Hospital but not fully cured. Thereafter her husband was refered to S.S.K.M. Hospital, Kolkata for better treatment. After few days, she brought her husband from Kolkata and thereafter her husband was admitted in the Kothari Medical Hospital but not fully cured. After that he was brought to the house. Subsequently, her husband died on 18.03.2012 after a year of the said accident. She has stated further that her husband “filed a complaint in the Bishalgarh Police Station which was entered as G.D entry No. 1294 dated 29.03.2011.” A copy thereof has been submitted. 15. She has further submitted that the discharge certificate, the referral certificate, the disablement certificate in respect of the deceased, his death certificate, prescriptions along with the cash memos are all submitted. Even the Air tickets from Agartala to Kolkata and to Agartala are also filed. The Survival certificate of the deceased was filed in support of all the claimant-appellants who are the legal heirs. They have the claim over the properties of the deceased. She has admitted that she did not file the complaint which was filed by her husband. Her husband was discharged from Hapania hospital on 28.06.2011. 16. From the other side the respondent No. 1, namely Rajib Kar was examined but he did not say anything about the accident. He simply admitted some documents relating to the vehicle, such as one copy of the sale agreement executed on 25.11.2009 by one Joy Shankar Bhattacharji in his favour and the insurance policy issued by the respondent No. 2, Tax token, the pollution certificate, registration certificate etc. There is no other material to prove the road traffic accident. Only one document which is available in Exhibit -1 series is the certificate of disablement as issued by the District Disablity Board, West Tripura on 16.11.2011 showing that the deceased had received permanent disability to the extent of 100 percent, with validity of 5(five) years. There only the word RTA has been mentioned. 17. The judgments as referred by Ms. S. Choudhury, learned counsel clearly show that it is the duty of the claimant to establish that the injury or death has occurred from the road traffic accident to the satisfaction of the Tribunal following the standard of preponderance of probability. 18. There only the word RTA has been mentioned. 17. The judgments as referred by Ms. S. Choudhury, learned counsel clearly show that it is the duty of the claimant to establish that the injury or death has occurred from the road traffic accident to the satisfaction of the Tribunal following the standard of preponderance of probability. 18. In this case, even the person who cause to enter the information in the G.D. entry was not even examined and the claimant-appellants did not adduce him even though he was closely related to the claimant-appellants being the younger brother of the injured/deceased. That apart, this Court has astonishingly noticed even the records from the Bishalgarh hospital has not been produced. According to the claimant-appellants, the victim was referred and taken to the G.B.P. Hospital, Agartala. Even in the G.B.P. hospital records, there is no mention of road traffic accident. It is common knowledge when a victim of road traffic accident is taken to any Government hospital the doctors put a special mark regarding road traffic accident in the bed head ticket or prescription because the occurrence relates to criminal culpability which might turn to a police case. but in the certificate there is no mention of RTA. Even thereafter it has been claimed by the claimant-appellants that the victim was taken to the S.S.K.M. Hospital under the referral note as above. We have seen the referral note. There is also no reference of 'RTA', only inspected about the disease called paraplegia. Thereafter, he was again admitted in the Tripura Medical Collage and Dr. B.R. Ambedkar Teaching Hospital, Hapania. In the records of the said hospital also, there is no mention of RTA. 19. All these circumstantial evidences, if read collectively, stand against the plea of the claimant-appellants. Only in the certificate of the disability RTA is mentioned. It appears that it is reported so. There was no investigation at behest of the said board. It is true that in certain cases even the Tribunal is empowered to decide the damage suffered in a road traffic accident, when the negligence is established with adequate evidence even when the FIR is not available. But as a matter of caution, it has become the rule of the Court to search for the FIR in as much as the negligence driving is an offense within the province of the India Penal Code. But as a matter of caution, it has become the rule of the Court to search for the FIR in as much as the negligence driving is an offense within the province of the India Penal Code. It is only natural that when such offence is reported to the police the police, shall take action. If such action is not taken and it comes to the notice of a citizen he or she has remedies to compel the police to take the appropriate action. But, in this case no such action has been taken. Absence of expected action provides the basis for adverse inference. 20. This court is not satisfied that the evidence as led by the claimant-appellants has established negligent driving or road traffic accident. Thus no infirmity is found in the finding, returned by the Tribunal and, accordingly, this appeal being bereft of merit is dismissed. 21. No order as to cost.