Point of Law: Claimant is the mother of the deceased as such she is entitled to get the filial consortium for the death of her son.

JUDGMENT :

MALASRI NANDI, J.

1. This is an appeal filed under Section 173 of M.V. Act 1988 against the judgment and order dated 01.02.2013 passed by learned Member, MACT, Jorhat awarding compensation amounting to Rs. 1,82,000/- (Rupees One Lakh Eighty Two Thousand) only in favour of the respondent/claimant in MAC Case No. 18 of 1998.

2. The brief facts of the case is that on 12.11.1996 at about 1:00 P.M. the son of the claimant (Prem Kanta Gogoi) was riding a scooter bearing Registration No. AMU-7018 being owned by one Sri. Suren Dutta. He was coming towards Jorhat town from Pulibar side. According to the claimant, one vehicle bearing Registration No. AS-01B/3101 (Recovery Van) knocked down her son Prema Kanta Gogoi as a result he sustained grievous injuries on his person. He was shifted to A.G. Nursing Home, Jorhat. As his condition was critical the injured was referred to Guwahati Medical College and Hospital. Thereafter, the injured was brought to Guwahati Medical College and Hospital, where he died on the next date. The claimant further stated that the accident occurred due to rash and negligent driving by the driver of the Recovery Van bearing No. AS-01B/3101 and thereafter, the claimant being the mother of the deceased, filed, the petition under Section 166 of the Motor Vehicles Act praying for compensation for the death of her son.

3. During trial 3 (three) witnesses were examined including the claimant. The claim case being No. MAC Case No. 18/1998 was dismissed by the Tribunal holding that the witnesses examined by the claimant were not present when the accident occurred as such the claimant failed to establish that the accident took place due to rash and negligent driving by the driver of the alleged offending vehicle.

4. Against the judgment for dismissal the claimant preferred an appeal before this Court and the case was remanded back to the Tribunal with a direction that the parties shall be given opportunity to adduce evidence afresh in support of their respective claims. Accordingly, the claimant examined 2 (two) other witnesses i.e. PW-4 and PW-5, but the insurance examined none.

5. After hearing both sides learned Tribunal delivered the judgment as aforesaid allowing compensation in favour of the claimant/respondent. Hence this appeal preferred by the appellant/Insurance Company with a prayer to exonerate the appellant to pay any compensation.

6. It was urged by the learned counsel for the appellant that the learned Trial Court erred in observing the fact that the claimant failed to prove that the accident occurred due to rash and negligent driving by the driver of the alleged offending vehicle insured with the appellant company. Thus, the judgment deserves to be interfered with. It is further argued that admittedly the deceased was in a scooter at the relevant time of accident and the accident occurred due to negligent driving by the deceased himself. As such the Insurance Company is not liable to pay any compensation. In support of his submission, learned counsel has placed reliance on the following case laws:

1. Oriental Insurance Co. Ltd. vs. Jhuma Saha and Others, (2007) 3 SCC (Cri) 443

2. Abdul Jiat vs. The National Insurance Company Ltd. MAC Appeal No. 60/2016

7. Per contra learned counsel for the claimant/respondent argued that in a motor vehicle accident case parties are to prove his case on pre-ponderance of probability and not on beyond reasonable doubt like criminal cases. Under such backdrop, claimant has proved her case by adducing evidence and producing some documents which is sufficient to award compensation in favour of her.

8. To succeed in the claim petition in view of Section 166 of the M.V. Act, it is for the claimant to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver. Mother of the deceased i.e. the claimant and 4 (four) other witnesses were