The central legal point established in the judgment is the requirement of proving negligence under Section 166 of the M.V. Act based on preponderance of probabilities, and the liability of the insurer of the offending vehicle to pay compensation.

JUDGMENT :

Subhendu Samanta, J.

1. The instant appeal has been preferred against the judgment and award dated May 21, 2011 passed by the learned Judge, Motor Accident Claims Tribunal, 2nd Court, Jalpaiguri , in M.A.C. case No. 456 of 2006.

2. The brief fact of the case is that the present appellant being the claimant preferred an application before the learned Tribunal under Section 166 of the Motor Vehicles Act for getting compensation from the Insurance Company on the ground that their unmarried son died in a road traffic accident due to rash and negligent driving of the driver of the offending vehicle duly insured under the policy of the insurance company. The claim was contested by the Insurance Company by filing written statement.

3. After hearing the parties, the learned Tribunal has dismissed the claim case.

4. Being aggrieved by the said order of dismissal, the present appeal has been preferred by the claimants.

5. Heard the learned advocates and perused the materials on record, the learned Tribunal has dismissed the claim case on the ground that the alleged accident happened due to collusion between the two vehicles one is motor cycle(Hero Honda Splender) bearing No. WB-74G/9518 which dashed with one vehicle((Minidoor Auto Rickshaw) bearing no. WB-73A-2277(C.T. Auto). The learned Tribunal has received the evidence of P.W. 1 and one eyewitness as P.W.2. The police papers were also produced wherein after investigation police has submitted final report showing the fact that the victim was responsible for the accident. The final report mentioned that the victim was travelling the motor cycle in rash and negligent manner. This is the reason the learned Tribunal has dismissed the claim application.

6. Learned advocate Mr. Subir Banerjee appearing on behalf of the appellant submits that the observation of the learned Tribunal is very much incorrect. The learned Tribunal could not disbelieve evidence of P.W. 1 and P.W.2 while the owner or the driver of the offending vehicle(C.T. Auto) had never appeared before the learned Tribunal to disapprove the case of the claimant.

7. In support of his contention he cited two decisions of Hon’ble Supreme Court and Division Bench of this Court are Jiji Kuruvila & Ors. Vs. Kunjujamma Mohan & Ors., reported in 2013 9 SCC 166, National Insurance Co. Ltd. Vs. Smt. Sarmistha Sikdar & Ors. reported in 2018(4) T.A.G 295(Cal) the Hon’ble Apex Court has held that “where the owner of the driver of the offending vehicle has not come forward to defend himself, the learned Tribunal and therefore this court would have no alternative but except that it was the vehicle alleged in the claim application which the offending vehicle”.

8. Mr. Banerjee, learned advocate also cited several decisions of Hon’ble Supreme Court on the principle that the plea of negligence and considering thereof by the learned Tribunal should be distinct and the proof thereof. In a case under Section 166 of the M.V. Act is required to be proceeded on the basis of preponderance of probabilities and not on the basis of beyond reasonable doubt. In support of his contention he also cited some decisions of Dr. N. G. Dastane Vs. Mrs. S. Dastane reported in AIR 1075 SC 1534, A.E.G Carapiet Vs. A. Y. Derderian reported in AIR 1961 CAL 359,Dulcina Fernandes & Ors. Joaquim Xavier Cruz & Anr. reported in (2014) 1 SCC(Cri) 13, Minu Rout & Anr. Vs. Satya Pradyumna Mohapatra & Ors. reported in (2013) 10 SCC 695.

9. Learned advocate appearing on behalf of the Insurance Company submits that the FIR was lodged on the self-same day of accident. On the basis of such FIR the distinct police case has been initiated. The police has investigated the case and after investigation submitted a charge-sheet. During the investigation, the police has enquired the local people and recorded their statement under Section 161 of the Code of Criminal Procedure. The learned Tribunal has considered the police final report and dismissed the claim case. The evidence of P.W. 2 who