The main legal point established is the burden of proof on claimants to prove negligence in a claim petition under Section 166 of the Motor Vehicle Act.

NAJMI WAZIRI, J.

1. The Award has been challenged on the ground that the DAR and the site plan show that the offending vehicle i.e. HTV – Trailer was moving in the extreme left-side lane i.e. the designated traffic lane for HTVs; LTVs are not driven in this lane but a separate said lane on the right-side of the HTV lane, therefore, the HTV was not the offending vehicle instead the damaged vehicle was in the wrong lane. It is not in dispute that the Wagon R in which the deceased was travelling crashed into the Trailer resulting in a fatal injury to him. The appellant argues that this is a deemed case of rash and negligent driving by the deceased himself leading to the accident, particularly by his driving in wrong lane. Hence, the insurer cannot be held liable for the fault of the deceased merely on the basis of the FIR.

2. The appellant argues that: (i) even assuming that both the parties were driving in the correct lane, a safe distance should have been maintained by the vehicle behind the ‘HTV-trailer’ in order to avoid collision in the event of sudden brake or stoppage by the vehicle moving ahead; (ii) no evidence was led by the claimant to prove that the offending vehicle was being driven rashly and negligently; (iii) the non-deposition of the driver of the HTV cannot necessarily be construed against the insurer because the facts and documents on record otherwise would show that the driver of the HTV was not rash or negligent. He refers to para 21 of the impugned order, which reads as under:-

“21. Site plan filed along with DAR shows Mark A as the spot of accident which has not been disputed or controverted by any of the respondents. According to FIR, the offending vehicle was coming from Nangloi side and was going towards Bahadurgarh side. The deceased, in Wagon R car, was also going in the same direction behind the offending vehicle. Direction of the two vehicles mentioned and indicated in the FIR and site plan is not disputed. Accordingly, Mark A is the spot where both the vehicles were going on the left side of the road which is near the cross section of a road towards Hiran Kudna village and a police picket was located right at the cross-section of the road.”

3. The learned counsel for the parties have been heard and the records have been perused. The Court notes that the deceased was the only one in the vehicle which met with the fatal accident. The driver of the MTV could possibly not have witnessed what happened to the rear of the large HTV – trailer because its sheer size would have hidden the much smaller passenger car a Wagon R. In the circumstances his testimony would be of little relevance as to how the little car crashed into the HTV from the rear. What would be essential is the examination of site plan and contention that the offending HTV ahead of the Wagon R stopped suddenly resulting in the fatal accident. The DAR as well as the Site Plan make out a plausible case for such a mis-happening. Accordingly, in view of Kaushnumma and Others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, the DAR and site plan are sufficient evidence to make out a probable cause for the accident. The contention that the alleged offending vehicle was being driven in the extreme left lane and the smaller passenger car – the Wagon R ought not to have even been in the same lane is specious; the Tribunal has observed that both the vehicles were in the same lane because they were near an approaching cross-section of roads. For a driver it is only prudent to shift into the farthest lane, either to the extreme right or left, depending on the route to be taken by the driver in order to take a safe turn at the crossing. Therefore, no fault can be found in the Wagon R car being in the left lane because there was a turning at the crossing just ahead, which perhaps its driver wanted to take. The Tribunal has recorded as under:

“15. Nevertheless, it is also a settled legal position that in a claim petition under Section 166 of