The burden of proof in negligence claims rests with the claimant, and negligence cannot be inferred merely from a criminal case.

JUDGMENT

Rajnish Bhatnagar, J.

1. The present appeal under section 173 of the Motor Vehicle Act 1988 has been filed by the appellants against the Impugned Award dated 21.07.2018 passed by the Ld. Tribunal whereby the Ld. Tribunal has dismissed the claim petition.

2. In brief, the facts of the case are that on 13.10.2015, deceased Gaurav Kumar Sinha was travelling in the offending vehicle bearing No. DL 1 YE 1480 and was returning from Pilkhuwa to Ghaziabad. At about 7:00 AM, the offending vehicle reached in front of Pehalwan Hotel, Masuri, U.P. and due to rash and negligent driving on the part of the driver of the offending vehicle, the accident took place in which Gaurav Kumar Sinha received fatal injuries and subsequently died.

3. Thereafter, the appellants preferred claim petition before the Tribunal. Respondent No. 1 and 2 herein, who were also respondent No. 1 and 2 before the Tribunal filed their written statement denying the averments in the petition and further stating that the appellants herein had no cause of action for filing the claim petition and also denied that the offending vehicle was being driven rashly and negligently by respondent No. 1.

4. Respondent No. 3 insurance company also filed a separate written statement admitting the insurance policy of the vehicle No. DL1 YE 1480 valid from 07.01.2015 to 06.01.2016 in the name of respondent No. 2 Nihal Singh.

5. The Ld. Tribunal on the basis of the pleadings of the parties framed the following issues:

"1. Whether deceased Gaurav Kumar Sinha died on account of injuries sustained in accident taking place on 13.10.2015 at about 7 AM in front of Pehlwan Hotel, Masoori, UP within the jurisdiction of PS Masoori Ghaziabad, UP due to rash and negligent driving of vehicle car bearing No. DL1 YE 1480 by respondent No. 1 ?OPP

2. Whether petitioners are entitled to compensation? If so to what amount and from whom? OPP

3. Relief."

6. The appellant No. 1 appeared as PW 1 before the Tribunal and proved the following documents on record:

(i) Complaint Cum Representation dt. 11.01.2016 alongwith affixed original postal receipts Ex. PW 1/1.

(ii) Request letter dated 12.02.2016 alongwith affixed original postal receipt Ex. PW 1/2.

(iii) Copies of identity proofs Ex. PW 1/3 to Ex. PW 1/5.

(iv) Copy of FIR Ex. PW 1/6.

(v) Copy of registration details of offending vehicle Ex. PW 1/7

(vi) Copy of proceedings U/s 174 Cr.P.C mark A.

(vii) Copy of postmortem report mark B.

(viii) Copies of education certificates Ex. PW 1/10.

7. The appellant also examined one Mr. Aditya Sinha, Asstt. Manager, HRA M/s SRS Limited as PW-2 who proved authority letter as Ex. PW 2/1 and appointment letter of deceased Gaurav Kumar Sinha alongwith salary slip and salary sheet for the month of October 2015 as Ex. PW 2/2. He also produced and proved the attendance sheet as Ex. PW 2/3X and receipt as Ex/. PW 2/4X and the bank statement of the deceased as Ex. PW 2/5X.

8. SI Ashok Kumar Upadhayay was also examined by the appellant as PW-3 and he proved on record the entire record of criminal investigation in crime No. 159/2017 U/s 279/304-A/338 IPC as Ex. PW 3/A.

9. One Manoj Kumar Singh was also got examined by the appellant as PW 4 who is alleged to be the eye witness of the accident.

10. In view of Section 166 of the M.V. Act 1988, it is for the claimant to prove that the vehicle which caused the accident was being driven rashly and negligently. The proof of negligence is sine qua non in a petition U/s 166 of the M.V. Act 1988. Merely because a criminal case is registered against th