JUDGMENT : 1. Heard, Shri Rajendra Jaiswal, learned counsel for the appellant and Shri Alok Kumar Srivastava, learned counsel for the respondent no.1. 2. This first appeal from order has been filed against the judgment and order dated 31.05.2010 passed in Motor Accident Claim Petition No.180 of 2009 (Sunil Kumar Vs. Mohd. Shadab & Another) by Motor Accident Claims Tribunal / Additional District Judge, Court No.6, Unnao by means of which the claim petition filed by the appellant has been dismissed. 3. The brief facts, for disposal of the present appeal, are that on 15.04.2009 the appellant / claimant was going alongwith his brother Shyam Lal for taking medicine to village Nevarna on foot on his left side of road. As he alongwith his father reached at some distance before the Government Ayurvedic Hospital, Nevarna at about 09:30 A.M., the driver of the Scorpio Jeep having Registration No.UP-35-F-7800, driving rashly and negligently, hit the appellant after bringing it on the left side. Consequently, the appellant suffered serious injuries. The right leg of the appellant was broken. The accident was seen by the father of the appellant and Raghuveer S/o Putti Lal R/o village-Nevarna and others and the number of the vehicle was noted down. The appellant was admitted in the District Hospital, Unnao in the injured condition. The appellant remained there for treatment w.e.f. 15.04.2009 to 11.05.2009 and the treatment was going on. The FIR of the accident was lodged by the father of the appellant at Police Station-Achalganj, District-Unnao against the driver. In case the driver of the vehicle would have driven the vehicle cautiously the accident would not have happened. With the aforesaid allegations the claim petition was filed claiming the compensation. 4. The claim petition was contested by the respondent no.1 i.e. the owner of the vehicle denying most of the allegations and also the involvement of his vehicle in the accident. It has been stated in paragraph-24 that at the alleged date and time of accident the accident had not occurred by vehicle No.UP-35-F-7800 because at the time of accident the vehicle was being driven by a competent driver namely Mukesh S/o Santosh Pasi R/o Village-Jamuka, Police Station-Achalganj, District-Unnao with a very slow speed on the left side of the road. Therefore, the question of accident does not arise. Therefore, the question of accident does not arise. The FIR has been lodged with a delay after consultation with the intention to claim the compensation after noting down the number of his vehicle. It has further been stated in the written statement that the vehicle was insured with the respondent no.2 i.e. Reliance General Insurance Company Limited and in case any liability for payment of compensation is made out the same is to be paid by insurance company. The respondent no.2 i.e Reliance General Insurance Company Limited had also filed its written statement. It has also been stated in written statement that the driver of the vehicle No.UP-35-F-7800 was not negligent. It was further stated in paragraph-11 that the accident was caused by the negligence of the Sunil Kumar as such the answering opposite party is not liable to pay any compensation. 5. On the basis of the pleadings of the parties six issues were framed. On behalf of the appellant-claimant-Sunil Kumar as PW-1 and Shyam Lal Yadav as PW-2 were got examined. On behalf of the respondents no oral evidence was adduced. On behalf of the appellant the original FIR and the copy of the release order of the vehicle in question issued from the Court, the copy of the Registration Certificate, Beema Policy of the vehicle in question, Medical Report of Sunil Kumar, the Site Plan of the spot of the accident, copy of the X-Ray Report of the appellant, report of the doctor for X-Ray, the Medicines taken by the appellant, Cash Memo and Receipts of the medicines taken by the appellant / claimant were filed. On behalf of the respondent-insurance company copy of the Beema Policy was filed. After hearing learned counsel for the parties and material available on record, the learned tribunal has dismissed the claim petition. 6. Submission of learned counsel for the appellant was that the accident had occurred on 15.04.2009 and he was admitted on the same date in the district hospital, Unnao and remained admitted up to 11.05.2009. After examination of the appellant the doctor had recommended for X-Ray of the right leg. In the X-Ray report fracture was found. The appellant and his father who was an eyewitness had adduced their evidence. After examination of the appellant the doctor had recommended for X-Ray of the right leg. In the X-Ray report fracture was found. The appellant and his father who was an eyewitness had adduced their evidence. The father of the appellant had stated that he was going with the appellant at the time of accident and he had seen the number of the vehicle after accident. The FIR was lodged by the father of the appellant and the cause of the delay has been explained by him. But the learned tribunal has not relied on the evidence as adduced by the appellant on the ground of certain minor discrepancies in the statements and the FIR in an illegal manner while the evidence could not have been discarded on the basis of minor discrepancies and the delay in lodging the FIR and the Site Plan. In fact the accident has not been denied by the respondents. It is apparent from the written statement filed by the respondents. 7. On the other hand, learned counsel for the respondent no.1 submitted that the vehicle of the respondent no.1 was not involved in the accident. There were discrepancies in the evidence of the appellant and his father even about the place of the accident. The appellant had stated in his evidence that he was going on his left side and the Nevarna comes after going directly from his village for which there is no need of coming on the road. As per the evidence of the appellant he had got injuries in his right leg, back and shoulders but the said injuries are not mentioned in the medical examination report. The appellant had stated in his evidence that the accident had occurred at some distance prior to the Government Ayurvedik Hospital while the spot of accident has been shown at a far distance of triangle on the north side in the Site Plan. The eye-witness mentioned in the FIR was not produced by the appellant. The learned tribunal after considering the pleadings and evidence on record has rightly come to the conclusion that the appellant has failed to proof the involvement of the vehicle of the respondent no.1 in the accident. There is no error or illegality in the findings recorded by the learned tribunal. 8. The learned tribunal after considering the pleadings and evidence on record has rightly come to the conclusion that the appellant has failed to proof the involvement of the vehicle of the respondent no.1 in the accident. There is no error or illegality in the findings recorded by the learned tribunal. 8. On the basis of above, learned counsel for the respondent no.1 submitted that the appeal has been filed on misconceived grounds which is liable to be dismissed. 9. I have considered the submissions of learned counsel for the parties and perused the records. 10. The claim petition was filed by the appellant claiming compensation on account of the alleged accident on 15.04.2009 from Scorpio Jeep No.UP-35-F-7800 alleging therein that the appellant / claimant was going on 15.04.2009 alongwith his father Shyam Lal for taking medicines to village Nevarna on foot on his left side of road. At about 09:30 A.M., as soon as he reached at the some distance before the Government Ayurvedic Hospital, Nevarna, the Scorpio Jeep No.UP-35-F-7800 came from the backside without giving horn, rashly and negligently and it's driver hit the appellant in which he suffered serious injuries in his right leg which was broken. The accident was seen by his father and Raghuveer S/o Putti Lal R/o Village-Nevarna and others present on the spot and the number of the vehicle was noted down and the appellant was admitted in the District Hospital, Unnao. The respondent no.1 while filing his written statement has not denied the accident on the date, time and place alleged in the claim petition. The only plea for noninvolvement of his vehicle in the accident is that the vehicle was being driven by the competent driver namely Mukesh with a very slow speed and on his left side, therefore it is apparent that the accident and the presence of the vehicle of the respondent no.1 on the date, time and place of the alleged accident has not been denied by the respondent no.1. The respondent no.2 has also not denied the accident rather it has stated on the one hand that the driver of the vehicle No.UP-35-F-7800 was not negligent and on the other hand that the accident was caused due to negligence of Sunil Kumar i.e the driver of vehicle in question as such the answering opposite party is not liable to pay any compensation. 11. 11. The appellant was admitted on 15.04.2009 in the Government Hospital, Unnao on the date on which the accident occurred and he was medically examined and the X-Ray of right leg was advised and in the X-Ray fracture was found. The named FIR was lodged on 22.04.209 against the driver of the vehicle and it has also been disclosed in the FIR that on account of the treatment of the appellant being going on he could not lodge the FIR earlier. After investigation the charge-sheet has also been filed against the Mukesh S/o Santosh Pasi R/o Jamuka, Police Station- Achalganj, District-Unnao, a copy of which has been filed before the claims tribunal vide paper no.24 Ga/3. 12. The learned tribunal without considering the aforesaid facts dismissed the claim petition after evaluating the evidence held that since the vehicle in question had not been stopped at the place of accident, therefore evidence of the appellant and his father that they had seen the number of the vehicle is not believable and there is contradiction in the place of accident in the statement of the witnesses and it has not been stated that how the informant came to know about the registration number and how he came to know about the name and address of the driver and the injuries do not tally with the medical examination report etc. The finding is not based on correct appreciation of record and evidence because the presence of the vehicle in question at the place of alleged accident and it being driven by Mukesh, the driver named in the FIR against whom the charge-sheet has been filed has not been denied by the respondents rather it has been stated in written statement that the driver of the vehicle in question was driving the vehicle with very slow speed and on his left side and as per the statement of the appellant and his father they were also going on the left side of the road. But it has not been considered by the learned tribunal. 13. The learned tribunal has examined the evidence and recorded findings as if the allegations were to be proved beyond reasonable doubt while it is settled proposition of law that in accident claim cases the accident is to be proved on the basis of preponderance of probabilities and it need not be proved beyond reasonable doubt like criminal trial. 13. The learned tribunal has examined the evidence and recorded findings as if the allegations were to be proved beyond reasonable doubt while it is settled proposition of law that in accident claim cases the accident is to be proved on the basis of preponderance of probabilities and it need not be proved beyond reasonable doubt like criminal trial. The approach of tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability. 14. The Hon'ble Apex Court in the case of Bimla Devi & Others Vs. Himanchal Raod Transport Corporation & Others; (2009) 13 SCC 530 has held that the claimants were merely to establish their case on the touchstone of preponderance of probability and standard of proof beyond reasonable doubt could not have been applied. The relevant paragraph-15 is extracted below:- "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." 15. In the present case after lodging of the FIR the investigation was conducted and a charge-sheet has also been filed against the named driver of the vehicle in question which has not been considered by the learned tribunal while deciding the claim petition. 16. The Hon'ble Apex Court in the case of Dulcina Fernandes & Others Vs. Joaquim Xavier Cruz & Another; (2013) 10 SCC 646 has examined the situation where the evidence of eyewitness was discarded by the tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. However, the Hon'ble Apex Court opined that it can not be overlooked that upon investigation of the case, registered against respondent, prima facie, materials showing negligence were found to put him on trial. 17. The Hon'ble Apex Court considered the aforesaid judgment in the case of Sunita & Others Vs. However, the Hon'ble Apex Court opined that it can not be overlooked that upon investigation of the case, registered against respondent, prima facie, materials showing negligence were found to put him on trial. 17. The Hon'ble Apex Court considered the aforesaid judgment in the case of Sunita & Others Vs. Rajasthan State Road Transport Corporation & Others; Manu/SC/0204/2019 and held as under in paragraph-25:- "25. In Dulcina Fernandes, this Court examined similar situation where the evidence of claimant's eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied as noted in Bimla Devi. In paras 8 & 9 of the reported decision, the dictum in United India Insurance Co. Ltd. v. Shila Datta, has been adverted to as under: (Dulcina Fernandes case, SCC p. 650) "8. In United India Insurance Co. Ltd. v. Shila Datta while considering the nature of a claim petition under the Motor Vehicles Act, 1988 a three Judge Bench of this Court has culled out certain propositions of which Propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow: (SCC p. 518, para 10) 10. (ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal. * * * (v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. ... (vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry.' 9. ... (vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry.' 9. The following further observation available in para 10 of the Report would require specific note: (Shila Datta case, SCC p. 519) 10. ... We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute.'" In para 10 of Dulcina Fernandes, the Court opined that nonexamination of witness per se cannot be treated as fatal to the claim set up before the Tribunal. In other words, the approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability." It is thus well settled that in motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal's role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases." 18. The Hon'ble Apex Court in the aforesaid judgment of Sunia and Others (Supra) has also considered the effect of the lodging of the FIR and charge-sheet which were not challenged, in paragraph 23, which is extracted below:- "23. The Tribunal had justly accepted the appellants' contention that the respondents did not challenge the propriety of the said FIR No. 247/2011 (Exh. 1) and chargesheet (Exh. 2) before any authority. The Tribunal had justly accepted the appellants' contention that the respondents did not challenge the propriety of the said FIR No. 247/2011 (Exh. 1) and chargesheet (Exh. 2) before any authority. The only defence raised by the respondents to this plea was that the said FIR No. 247/2011 was based on wrong facts and was filed in connivance between the appellants/complainants and the police, against which the respondents complained to the incharge of the police station and the District Superintendent of Police but to no avail. Apart from this bald assertion, no evidence was produced by the respondents before the Tribunal to prove this point. The filing of the FIR was followed by the filing of the chargesheet against respondent No.2 for offences under u/Sections 279, 337 and 304A of the IPC and Sections 134/187 of the Act, which, again, reinforces the allegations in the said FIR insofar as the occurrence of the accident was concerned and the role of respondent No.2 in causing such accident. Be that as it 27 may, the High Court has not even made a mention, let alone record a finding, of any impropriety against FIR 247/2011 (Exh. 1) or chargesheet (Exh. 2) or the conclusion reached by the Tribunal in that regard. Yet, the FIR and the Chargesheet has been found to be deficient by the High Court." 19. The Hon'ble Apex Court also held in aforesaid judgment of Sunita and Others (Supra) that the non-examination of the pillion rider would not be fatal to the case of the appellants because the approach in examining the evidence in accident claim cases is not to find out fault with non-examination of some "best" eyewitness in the case but to analyse the evidence already on record to ascertain whether that is sufficient to answer the matters in issue on the touchstone of preponderance of probability. Thus, non-examination of any age witness can not be fatal. of any The relevant paragraph-31 is extracted below:- "31. Similarly, the issue of non-examination of the pillion rider, Rajulal Khateek, would not be fatal to the case of the appellants. Thus, non-examination of any age witness can not be fatal. of any The relevant paragraph-31 is extracted below:- "31. Similarly, the issue of non-examination of the pillion rider, Rajulal Khateek, would not be fatal to the case of the appellants. The approach in examining the evidence in accident claim cases is not to find fault with non examination of some "best" eye witness in the case but to analyse the evidence already on record to ascertain whether that is sufficient to answer the matters in issue on the touchstone of preponderance of probability. This court, in Dulcina Fernandes (supra), faced a similar situation where the evidence of claimant's eyewitness was discarded by the Tribunal and the respondent was acquitted in the criminal case concerning the accident." 20. So far as the findings recorded by the learned tribunal in regard to the Site Plan is concerned that could not have been relied to discard the accident without its being proved by the concerned police officer who prepared the Site Plan or other corroborative evidence. The paragraph-33 of Sunita and Others (Supra) of the Hon'ble Apex Court is relevant in this regard, which is extracted below:- "33. The site plan (Exh. 3) has been produced in evidence before the Tribunal by witness A.D. 1 (appellant No.1 herein) and the record seems to indicate that the accident occurred in the middle of the road. However, the exact location of the accident, as marked out in the site plan, has not been explained muchless proved through a competent witness by the respondents to substantiate their defence. Besides, the concerned police official who prepared the site plan has also not been examined. While the existence of the site plan may not be in doubt, it is difficult to accept the theory propounded on the basis of the site plan to record a finding against the appellants regarding negligence attributable to deceased Sitaram, moreso in absence of ocular evidence to prove and explain the contents of the site plan." 21. While the existence of the site plan may not be in doubt, it is difficult to accept the theory propounded on the basis of the site plan to record a finding against the appellants regarding negligence attributable to deceased Sitaram, moreso in absence of ocular evidence to prove and explain the contents of the site plan." 21. In view of above, this Court is of the view that the learned tribunal though has discussed the evidence in detail to record the finding that the appellant has failed to prove the involvement of the vehicle in question in the alleged accident but has not considered the aforesaid facts, therefore the judgment passed by the learned tribunal is not sustainable and is liable to be set-aside with direction to the concerned tribunal to decide the claim petition afresh after considering the evidence and material available on record in accordance with law. 22. The appeal is, accordingly, partly allowed. The judgment and order dated 31.05.2010 passed in Motor Accident Claim Petition No.180 of 2009 (Sunil Kumar Vs. Mohd. Shadab and Another) by Motor Accident Claim Tribunal / Additional District Judge, Court No.6, Unnao is set-aside. The matter is remitted back to the concerned claims tribunal for deciding afresh in accordance with law and the observations made here-in-above expeditiously and preferably within a period of three months from the date of receipt of the certified copy of this order and the record. 23. No orders as to cost. 24. The lower court record shall be remitted back to the concerned tribunal within a period of fifteen days from today.