Pataso And ANR. v. Vinod Kumar And ANR.
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"13. Both the respondents No.1 and 2 have denied the factum of accident. This petition initially was filed under section 166 of Motor Vehicles Act, but later on, it was converted into section 163-A of M.V. Act, by the petitioners. Under section 163-A of Motor Vehicles Act it was incumbent upon the petitioners to prove on file that deceased Brijesh Kumar had died while was in use and occupation of the truck in question. Orally Prikshit father of deceased has deposed about the death of Brijesh Kumar in a motor vehicular accident, which was caused flue to bursting of front tyre of the truck. Besides it, claimants have also placed on file copy of FIR Ex.P2, though objected to. On the contrary, though no rebuttal evidence is led by the respondents, but petitioners are required to stand on their own legs and the weaknesses of the respondents are immaterial. On the other hand, to prove this occurrence the claimants were at least required to examine Laxman, who was conductor on the ill-fated truck and it was he who had reported the occurrence, but he has not been examined.
14. The matter does not rest here. The post-mortem report has also not placed on file and no reason for the same has been assigned. The law is now well settled that mere exhibition of a document does not dispense with its proof a document ought to be. Since Laxman, the lodger of the FIR and the MHC of the concerned police station have not been called to prove the FIR. Similarly, post-mortem report is not placed on file, nor any cogent reason put forth on file and so oral deposition of the claimants, who are interested witnesses and are not the eye witnesses of the occurrence, cannot be held sufficient to prove the occurrence or the death of Brijesh Kumar while driving the ill-fated truck and thus the claimants have failed to discharge the burden lied on them in proving the occurrence and death of deceased Brijesh Kumar through clear and cogent explanation in a motor vehicular accident. Hence, this issue is decided against the petitioners; and in favour of the respondents.
Issues No.2 to. 7.
15. In view my findings recorded under issue No.1 aforesaid, other issues have become redundant and hence, they are not called for any decision. Hence, all these issues are decided accordingly."
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