The burden of proving negligence in a car accident claim lies with the claimant, as per Section 166 of the Motor Vehicles Act.

Kailash Gambhir, J.

1. By way of the present appeal, the appellant seeks to challenge the impugned award whereby the claim petition filed by the appellant was dismissed.

2. Brief facts of the case inter-alia are that the appellant is a practicing Advocate, aged about 41 years. On 31.5.2004 at about 5:20 p.m. while he was returning to his house from Tis Hazari Courts and was standing at bus stop of ISBT, near Ritz Cinema Hall, the respondent No. 1 came from Mori Gate side by driving her car No. DL-6CB 5679 in rash and negligent manner and the said car ran over the right foot of the appellant causing him grievous injuries in his foot and various other injuries. The respondent No. 1 did not care to stop her car despite injuries caused to him and the appellant after noting down the number of the car informed the same to the Police Control Room. The police apprehended the respondent No. 1 and an FIR was registered with P.S. Kashmiri Gate. The appellant in the meanwhile got himself medically examined at Aruna Asaf Ali Hospital.

3. Mr. P.S. Yadav, counsel appearing for the appellant contends that the tribunal has dismissed the petition of the appellant, although sufficient evidence was placed by the appellant so as to prove factum of negligence and the injuries sustained by the appellant. Contention of the counsel for the appellant is that an FIR No. 258/2004 dated 31.05.2004 was registered against the respondent under Section 279/337 IPC and respondent alone had sought release of the offending car on Superdari, and thereforee, there was no occasion for the tribunal to hold that the negligence was not proved by the appellant. Counsel for the appellant also contends that the respondent No. 1 did not lodge any counter complaint against the appellant, if as per the respondent false FIR was registered by the appellant against her. The tribunal also overlooked grievous injuries sustained by the appellant in the toe of his right leg and also the medical record duly proved in evidence. Counsel for the appellant further contends that the tribunal also overlooked the fact that during the trial, the appellant had duly identified respondent No. 1 to be the same person who was driving the offending vehicle in a rash and negligent manner.

.4. Per contra, counsel appearing for the respondent vehemently refutes the submissions made by the counsel for the appellant. Counsel for the respondent

.submits that the appellant although, being an advocate by profession, has miserably failed to prove any kind of negligence on the part of respondent No. 1. Contention of counsel for the respondent is that without proving rash and negligent driving on the part of the driver of the vehicle, tribunal has rightly dismissed the claim petition of the appellant.

5. Counsel for respondent also invited my attention to the deposition of PW 2 who did not utter even a single word imputing negligence on the part of respondent No. 1 in the accident. The said witness Shri Ramesh Kumar Jha was not a summoned witness. Even the appellant in his deposition falsely disclosed the colour of the car as white while the same was deep purple.

6. I have heard counsel for the parties and have perused the records.

.7. It is a settled legal position that proof of negligence is essential to maintain a claim for compensation as envisaged under Section 166 of the Motor Vehicles Act. It is only under Section 163-A, the use of the offending vehicle but not negligence on the part of the offending vehicle is required to be established. Unlike Section 163-A, proof of negligence is sine qua non to claim compensation under Section 166 of the Motor Vehicles Act. In this regard, the Honble Apex Court has, in Oriental Insurance Co. Ltd v. Meena Variyal AIR2007SC1609 observed as under:

.We think that the law laid down in Minu B. Mehta v. Balkrishna Ramchandra Nayan 10 was accepted by the legislature while enacting the Motor Vehicles Act, 1988 by introducing Section 163Aof the Act providing fo