The charge of rash and negligent driving is to be proved on the touchstone of preponderance of probabilities and not beyond reasonable doubt, and the comprehensive/package insurance policy covering the risk of occupants of the car is a crucial consideration in determining liability.

JUDGMENT

Navin Chawla, J. (Oral)

1. These appeals have been filed challenging the Award dated 12.09.2018 passed by the learned Motor Accidents Claims Tribunal (SE-01), Saket Courts, New Delhi (hereinafter referred to as the `Tribunal') in MACT Case No.4463/2016, Dharmender Bhati v. Amit & Ors., and in MACT Case No.3949/2016, titled Smt. Prakashi Devi & Anr. v. Sh. Amit & Ors., where claims were raised arising out of the same accident.

2. The limited challenge of the appellant to the Impugned Award is that the respondents/claimants had failed to prove before the learned Tribunal that the offending vehicle was being driven in a rash and negligent manner.

3. The learned counsel for the appellant submits that while the accident was alleged to have taken place on 03.12.2014, the FIR was lodged with a considerable delay on 19.12.2014. She submits that the claimant and the respondent no.1 are relatives and therefore, connivance cannot be ruled out.

4. On the other hand, the learned counsel for the respondent no.1/claimants submits that a Charge-Sheet has been filed against the driver of the offending vehicle. The manner of the accident was also proved before the learned Tribunal, clearly showing that the same occurred due to the rash and negligent driving of the driver of the offending vehicle. He submits that the delay in filing of the FIR was due to the reason that the claimant had to be hospitalized due to the injuries suffered, and was discharged from the hospital only on 09.12.2014. In any case, upon investigation, the police has already filed a Charge-Sheet against the driver.

5. I have considered the submissions made by the learned counsels for the parties.

6. The learned Tribunal in the Impugned Award, on the question of the offending vehicle being driven in rash and negligent manner, has observed as under:

"20. In the MACT cases, petitioners are required to, prove the rash and negligent driving by the driver of the offending vehicle. In this case, PW2 Sh. Dharmender Bhati, who is also eye witness of the case while appearing into witness box, made statement and narrated the mode and manner of the accident. Driver examined himself and admitted the accident however, stated that while he was taking a U turn, all of sudden a glare of light came due to which the accident was caused. Certified copy of the charge-sheet along with other relevant documents including mechanical inspection report, PM Report, FIR and site plan have been filed.

21. In the enquiry proceedings before this Tribunal, the charge of rash and negligent driving is to be proved at the touch stone of preponderance of probabilities and not beyond reasonable doubt. The preponderance of probability is in favour of the petitioners.

22. Counsel for Insurance Company has raised an objection that there is a delay of 16 days in registration of FIR. This objection is of no consequence in view of the circumstance that charge sheet has already been filed by police against the driver after making investigation in the case. Even otherwise, in `Ravi V/s. Badri Naravan, 2011 ACJ 911 the Hon'ble Supreme Court' held that "Delay of a couple of days in lodging police complaint would not be fatal as first priority is to be given to the victim". It is stated in the FIR that due to death and funeral rituals of deceased Sandeep, the report could not be made earlier. Medical documents of victims are already on record, according to which, Victim Sandeep had taken treatment at Yatharth Wellness Hospital on 03.12.2014 and expired on 04.12.2014 at about 07.59 am and injured Dharmender had taken treatment at Yatharth Wellness Hospital on 03.12.2014 and remained admitted there till 09.12.2014, whereas, the accident took place on 03.12,2014 at about 09.00 pm.

23. After investigation, police had filed charge-sheet against the respondent no.1 under Section 279/338 and 304 AIPC and this in itself is a proof of negligence of the driver, (see National Insurance Co. Vs. Pushpa Rana, 2009 ACJ 287 Delh