The court established that in motor accident claims, the burden of proof is on the claimant to show negligence based on a preponderance of probabilities, and delays in FIR filing do not automatically invalidate claims.

JUDGMENT :

Nisha M. Thakore, J.

1. The appellant is the original claimant has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the “Act”) being aggrieved by the judgment and award dated 22.2.2011 passed by the Motor Accident Claims Tribunal, (Auxi), Mehsana in MACP No.673 of 2008. By the said judgment and award, the learned Fast Track Court Judge has rejected the claim of the appellant preferred under Section 166 of the Act seeking compensation of an amount of Rs.25 lakhs towards the injuries sustained in the motor accident.

2. Before the Tribunal, the appellant- original claimant had though raised claim of Rs.25 lakhs with proportionate costs and interest against the present respondents – original opponents, however, in the present appeal the claim is restricted to an amount of Rs.5 lakhs and has accordingly raised grounds seeking enhancement.

3. It is the case of the original applicant before the Tribunal that;

3.1. On 28.04.2008 at about 9 a.m., the applicant had started from Kadi to attend marriage at his village Khanderavpura on his Eterno Scooter bearing registration no.GJ-2-AJ-4953. According to the applicant, he was driving the said Eterno Scooter with moderate speed and in the right direction i.e. on the left corner side of the road, while he had reached on Bavlu- Kadi Road, at that time one Tractor attached with the Trolley bearing registration no.GJ-2-AG-2125 came suddenly in excessive speed and dashed with the Eterno Scooter. The accident had taken place on the Bavlu- Kadi road near the farm of Patel Ranchodbhai Hargovanbhai at around 9.30 a.m. Because of impact of the Tractor, the applicant had fallen down on the road resulting into serious injuries on his left side of the lower limb as well as on his right side of the hand and right shoulder. The applicant had received crush injuries over his right leg with compound grade III B fracture of tibia fibula with neurovascular injury. The applicant was immediately shifted for primary treatment at Bhagyoday Hospital, Kadi and thereafter was provided further treatment at Sainath Hospital, Ahmedabad. Later on he was referred to and treated at Sterling Hospital at Ahmedabad whereby his left lower limb was amputated.

3.2. By referring to the aforesaid occurrence of incident of the injuries sustained, the claimant had preferred claim petition under Section 166 of the Act inter alia seeking compensation of Rs.25 lakhs. The claimant had impleaded owner and driver of the Tractor as opponent nos.1 and 2 respectively. The Bank who had advanced the loan for purchase of Tractor was also joined as opponent no.3. The opponent no.4 being the owner of the Eterno Scooter was also joined in the claim petition. The United India Insurance Company of the Scooter was also joined as opponent no.5. The opponent nos. 1 to 4 were duly served with the summons, however they have chosen not to object to the claim petition by submitting any written statement. The opponent no.5 Insurance Company had objected to the claim petition by filing its written statement at Exh.71. The Tribunal upon appreciation of the pleadings had framed issued at Exh.26, which reads as under :

“1. Whether it is proved that the claimant sustained injuries on account of rashness and negligent driving on the part of the driver/s of the vehicle/s involved in the accident?

2. What amount, if any, the claimant is / are entitled to by way of compensation and from which of the opponents ?

3. What order and award ?

3.3. Before the Tribunal, the original claimants had brought on record the various documentary evidences, which were produced on record with list at Exh.28. This mainly includes certified copy of the FIR at Exh.30, panchnama of the occurrence of the accident at Exh.31, panchnama of Eterno Scooter at Exh.32, panchnama of tractor with trolley at Exh.33. The statement of the witness recorded by the police from Exhs. 34 to 38. The certified copy of the charge sheet was produced at Exh.