To claim compensation under Section 166 of the Motor Vehicles Act, the claimant must prove negligence of the vehicle driver; mere involvement of the vehicle is inadequate.

JUDGMENT :

R.M. JOSHI, J.

1. Learned counsel for the appellant filed compilation. The same is taken on record. Copy is supplied to the other side. By consent of both the sides, heard finally at the stage of admission.

2. This appeal is preferred by the original claimants against the Judgment and Award dated 12.07.2024 passed in M.A.C.P. No. 70 of 2017 whereby the claim Petition filed by them stood rejected.

3. As per the case of the claimants before the Tribunal the deceased Aniket Surve aged about 23 years was traveling in Alto car bearing No. MH-06/AZ-4543 on Alibag Pen road. At about 2:00 p.m. when they reached to the spot of accident, an unknown vehicle which was being driven in rash and negligent manner and at excessive speed, dashed into the Alto car as a result of which, the deceased sustained injuries and succumbed to the same. The claimants have also stated about the employment and income of the deceased and dependency of the claimants thereon. In respect of the said accident, First Information Report (for short “FIR”) came to be lodged being Crime No. 88 of 2016. It is claimed by the claimants that the accident in question occurred due to the rash and negligent driving of Alto car by its driver. The said vehicle is owned by the opponent No.1 and insured with the opponent No.2.

4. Opponent No.1– owner filed written statement denying the involvement of the Alto car in the accident. It is also claimed that the accident occurred due to the negligence of the driver of unknown vehicle and that there is no fault on the part of the driver of Alto car in the occurrence of the accident. Rest of the contentions of the claimants were also denied.

5. The insurer filed written statement at Exhibit-14 denying the averments of the claimants in the claim petition. The objection is raised with regard to the maintainability of the petition for non joinder of the insurer and owner of the unknown vehicle. The insurer denied the liability of the payment of compensation. Before the Tribunal claimant No.1 examined at Exhibit-19. Police papers were relied upon in order to prove the factum of the accident. No evidence was led by the owner as well as insurer before the Tribunal. The Tribunal dismissed the Claim Petition by following Judgment of the Hon’ble Supreme Court in the case of Khenyei Vs. New India Assurance Co. Ltd. & Ors. 2015 LAWS (SC) 526. It is held that the evidence on record does not indicate any negligence on the part of the driver of Alto car and therefore the claim is not maintainable against the owner and insurer of the said vehicle.

6. Learned counsel for the appellant submits that the Tribunal has committed error in not considering the case of the claimant about the occurrence of the accident due to the negligence of the driver of Alto car. It is his submission that though FIR has been lodged against unknown vehicle, it is open for the Tribunal to consider the evidence on record and to render findings with regard to the negligence on the part of the driver of the Alto car in causing the said accident. He drew attention of the Court to Section 165 of the M.V. Act which according to him requires the claimant to only show the involvement of the vehicle in question in the occurrence of the accident. It is his submission that it is not necessary for the claimant to show any negligence of the driver of the said vehicle in order to claim the compensation. To support his submissions, he placed reliance on the Judgment of the Hon’ble Supreme Court in the case of Shivaji Dayanu Patil and Anr. Vs. Vatschala Uttam More, 1991 ACJ 777. Atten