The determination of rash and negligent driving in motor accident claims is to be tested on the touchstone of preponderance of probabilities, and strict rules of evidence are not applicable.

JUDGMENT

Rekha Palli, J. (Oral)

1. These two appeals, both under Section 173 of the Motor Vehicles Act assail the award dated 13.04.2018 passed by the learned Motor Accident Claims Tribunal, (Shahadara), Karkardooma Courts, New Delhi in MAC No.1036/2016. Vide the impugned award, learned Tribunal has awarded a compensation of Rs.27,74,000/- with interest @ 9% p.a. in favour of the claimants. While the insurance company seeks reduction of the compensation by way of MAC APP. 561/2018, the claimants seek enhancement of compensation by way of MAC. APP 740/2018.

2. Soni, learned counsel for the insurer submits that the learned Tribunal has erred in awarding compensation without appreciating the fact that the evidence led by the appellant to show negligence on the part of the driver of the insured vehicle was not reliable and therefore, could not be relied upon. He submits that once there was no independent witness to prove the negligence of the driver, the impugned award is liable to be set aside.

3. On the other hand, learned counsel for the claimant, by drawing my attention to the findings in the impugned award qua the negligence of the driver of the insured vehicle, submits that the said findings are correct. Furthermore, it was not even the case of the insurer that there was any contributory negligence on the part of the deceased and therefore, prays that the appeal of the insurer be rejected. He further submits that on the other hand, the claimant is entitled to seek enhancement of the compensation as the learned Tribunal failed to take into account the salary received by the deceased from his part time job.

4. Before considering the rival submissions of the parties, it would be apposite to note the findings of the Tribunal on the issue as to whether the deceased Sh. Shivam Sharma suffered fatal injuries due to rash and negligent driving of the insured vehicle being DL-3CB-1162. The said findings, as contained in para 9-12 of the impugned award read as under:

"9. The mode and manner of proving the rash and negligent driving of the offending vehicle has also been considered in various other judgments and has held that the onus to prove the rash and negligent driving is not to be discharged beyond doubt or in the similar manner as a fact is to be proved in a civil case. Rather it has to be proved on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition based upon negligence. The observation of the Hon'ble High Court made in New India Assurance Co. Ltd. V. Sakshi Bhutan] & ors, MAC APP, 550/2011 decided on 02.07.2012 is relevant that it has to be borne in mind that the Motor Vehicles Act does not envisage holding a trial for a petition preferred under Section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal is enjoined to hold an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Even in State of Mysore Vs. S.S, Makapur, 1993 (2) SCR 943, the Hon'ble Supreme Court held that the Tribunals exercising quasi-judicial functions are not courts and are not bound by strict rules of evidence.

10. Further, the approach of the tribunal has also been defined by the Hon'ble Supreme Court of India in N.K.V. Bros. (P) Ltd. v. M. Marumai Ammal, 1980 ACJ 435 (SC), that the Accidents Claims Tribunal must take special care to see that innocent victims do not suffer and persons liable do not escape liability merely because of some doubt here and some obscurity there. The court should not succumb to niceties, technicalities and mystic maybes. The court is bound to take broad view of the whole matter. As such, the case of the injured has to be decided in view of the above said legal proposition in this case.

11. PW5 Maneesh Kaushik is an eye witness of this accident and has duly proved that on 08.12.2012, at about 03.00 pm, deceased Shivam Sharma Yadav was going t