HARISH S/O MUNIYAPPA Vs. MARUTHIKUMAR V

JUDGEMENT

(1.) This miscellaneous first appeal is filed against the judgment and award dated 25.11.2011 passed in MVC.No.3990/2010 on the file of the Prl. MACT & Chief Judge, Court of Small Causes, Bangalore.

(2.) It is the case of the appellant/claimant that the appellant/claimant met with an accident on 13.11.2009 due to rash and negligent riding of the motor cycle bearing Engine No.64004 and Chassis No.26201 by its rider, which belongs to 1st respondent. Immediately after the accident, the appellant/claimant was shifted to SNR Hospital, Kolar and he was subjected to surgery and was in the hospital for a long period and the owner of the offending vehicle came and promised that he is going to settle the claim, but he did not turn up. Hence, the father of the claimant lodged a complaint before the police. There is a delay of 40 days in lodging the complaint for the above reasons. The police after receipt of the complaint, investigated the matter and charge sheet came to be filed.

(3.) The learned counsel for the appellant/claimant has contended that the Tribunal has committed an error apparent on the face of the record and has failed to consider both oral and documentary evidence and also failed to take note of the fact that there is no contra evidence by 2nd respondent. Further, it is contended that the Tribunal has erred in coming to the conclusion that the appellant/claimant has not proved the accident beyond reasonable doubt without considering the law laid down by the Apex Court in a decision reported in AIR 2009 SCW 4298 that strict proof of accident is not possible and the claimant has to prove his case merely on touchstone of preponderance of probabilities and the court below has committed an error in dismissing the claim petition.