In a claim petition under The Motor Vehicles Act, the claimant is not required to prove the negligence of the offending vehicle beyond reasonable doubt, but on the basis of preponderance of probability.

JUDGMENT

Navin Chawla, J. (Oral)

CM APPL. 34472/2023 (Exemption)

1. Allowed, subject to all just exceptions.

MAC.APP. 339/2023

2. This appeal has been filed challenging the Award dated 18.03.2023 passed by the learned Motor Accident Claim Tribunal-02, South-West District, Dwarka Courts, New Delhi (hereinafter referred to as the `Tribunal'), in MACT No. 782/2016 titled Baby Khushi (Minor) v. Rahul & Ors.

3. The above claim petition was filed claiming that on 31.08.2013 at about 6:30 PM, the claimant was going on a Scooty bearing No. DL-9S-AM-4156 as a pillion rider along with her Aunty Annu @ Moni, who was driving the same. When the Scooty reached in front of P.S. Bindapur, suddenly one truck bearing No. DL-IL-G-4192, being driven by its driver, Shri Rahul (respondent no. 1 before the learned Tribunal), in a rash and negligent manner came from behind and hit the rear of the Scooty with its front bumper with great force. Due to this forceful impact, the Claimant along with her Aunty fell down on the road and the Claimant received grievous injury resulting in amputation of her left leg below knee. The claimant suffered permanent disability of 75%.

4. The limited challenge of the appellant to the Impugned Award is that the Claimant had failed to prove that the accident had occurred due to the truck being driven in a rash and negligent manner. She submits that it was the case of the driver of the truck that he was driving at a moderate speed, and it was only because the Scooty was being driven in a rash and negligent manner that the accident happened.

5. The learned counsel for the appellant submits that, in fact, the Aunty of the claimant, who was driving the Scooty, did not possess a valid driving license. She submits that, therefore, a presumption should, in fact, have been drawn against the claimant on this issue.

6. I have considered the submissions made by the learned counsel for the appellant, however, find no merit in the same.

7. The learned Tribunal has held that the accident occurred due to the truck being driven in a rash and negligent manner by the driver thereof. The Tribunal also rejected the plea of contributory negligence by observing as under:

"7. The onus to prove this issue is upon the petitioner. To prove the present issue, the petitioner has examined PW1 Annu @ Moni. Who in her affidavit (Ex. PW-1/A) has deposed that on 31.08.2013 at about 06.30 p.m she was going on a Scooty bearing No. DL-9S-AM- 4156 alongwith her niece Khushi, who was sitting on a pillion seat. When the Scooty reached in front of P.S Bindapur on Road, Bindapur, New Delhi. Suddenly one truck bearing No. DL-IL-G-4192 being driven by its driver, respondent No.1, in rash and negligent manner came from behind and hit the scooty from behind by its front bumper with great force. Due to this forceful impact, she alongwith petitioner fell down on the road. And petitioner received grievous injury.

8. PW- 1 has been duly cross-examined. The testimony of the witness with respect to accident and rash & negligent driving of offending vehicle could not be impeached. Even otherwise, the proof of negligence while disposing off a claim under MACT is not that strict as it is under Section 279/338 of IPC. The evidence which has come on record can be considered and becomes more relevant when there is no specific evidence led by other side in rebuttal. Moreover after investigation, police indicted respondent no.1 for offences punishable under Sections 279/338 of IPC and M.V. Act. The FIR has been registered against respondent no.1 and he has not filed any complaint against the police before any higher authority against his alleged false implication, if any. The fact of accident and the respondent no.1 is facing the trial as an accused in criminal Court is not disputed. Even otherwise strict rule that negligence is to be proved beyond reasonable doubt is not to be proved in MACT proceedings.

9. On the other hand, Ld Counsel for the Insurance Company has argued t