The main legal point established is that negligence must be proved under Section 166 of the Motor Vehicles Act, and cases falling under welfare legislation should be considered under Section 163-A.

Suresh Kait, J.:-

1. The present appeal is directed against the impugned Award dated 30.07.2005 whereby Learned Tribunal granted compensation of Rs. 13,69,568/- with interest @ 9% per annum from the date of framing of the issues, i.e., 21.04.2004 till realisation.

2. It is pertinent to mention that initially, the claim petition was filed under section 163-A of the Motor Vehicles Act and subsequently, it was amended and converted into a petition under section 166 of the M.V. Act.

3. Mr. Sourabh Kumar Tuteja, Ld. Counsel appearing on behalf of the appellant argued that car bearing No. HR-26-2990 had caused the accident, however, the Ld. Tribunal has attributed strict liability on the scooter bearing No. DDP-7020, which was not negligent in any manner.

4. He submitted that on 03.02.1999 at about 6 p.m., respondent No. 3 Dr. Mahendra Kumar was driving the two wheeler scooter No. DDP- 7020; and his wife, the deceased Smt. Mamta Gupta, was the pillion rider on the said scooter. When they reached at Outer Ring Road after Railway Flyover, near Azadpur bye pass, Delhi, a vehicle No. HR-26-2990, being driven rashly and negligently, came from behind and hit the said scooter, due to which the deceased Smt. Mamta Gupta suffered grievous injuries and died at the spot. The driver of the vehicle No. HR-26-2990 fled away from the place of accident along with the vehicle and remained untraced. Initially, the claim petition was filed under Section 163-A of Motor Vehicles Act. Thereafter, the claimants amended the claim petition and converted into under Section 166 of Motor Vehicles Act.

5. Ld. Counsel further submitted that the Ld. Tribunal ought to have appreciated that merely because the record pertaining to vehicle No. HR-26-2990 was not available, the entire liability qua the accident could not have been fastened on the scooter, i.e., the vehicle no. DDP-7020. He further submitted that merely because the deceased happened to be a pillion rider of the scooter, whose death was admittedly caused due to hit by one car no. HR-26-2990 from behind, the driver and the owner of the said scooter cannot be made liable particularly when the claimants failed to prove the rash and negligent driving of the driver of the scooter.

6. Ld. Counsel for the appellant has relied upon the case of Surender Kumar Arora and Another vs. Manoj Bisla and others (2012) 4 SCC 552 in which the Apex Court has observed as under:-

“9. Admittedly, the petition filed by the claimants was under Section 166 of the Act and not under Section 163-A of the Act. This is not in dispute. Therefore, it was the entire responsibility of the parents of the deceased to have established that respondent no.1 drew the vehicle in a rash and negligent manner which resulted in the fatal accident. Maybe, in order to help respondent no.1, the claimants had not taken up that plea before the Tribunal. Therefore, the High Court was justified in sustaining the judgment and order passed by the Tribunal. We make it clear that if for any reason, the claimants had filed the petition under Section 163-A of the Act, then the dicta of this Court in the case of Kaushnuma Begum would have come to the assistance of the claimants.”

7. Ld. Counsel submitted that the Ld. Tribunal has wrongly relied upon the case of Kaushnuma Begum vs. New India Assurance Co. Ltd. (2001) 2 SCC 9. He submitted that the said case is applicable to a petition filed under Section 163-A, not to the present petition which has been decided by the Ld. Tribunal under Section 166 of the M.V. Act.

8. On perusal of the record, it is established that the claimants have produced PW1 a police official of Delhi Police, who produced the FIR No. 56/99 of the P.S. Jahangirpuri, Delhi and copy of the same is Ex. PW1/A. PW2 has proved the post-mortem report of the deceased Ex. PW2/A. On the other hand, the appellant insurance company produced an official from the office of the Transport Authority, Gurgaon, Haryana who proved the copy of the report Ex. R1