IMPORTANT POINT
In motor vehicle accident claims, the absence of eyewitnesses does not preclude establishing negligence; the standard of proof is based on preponderance of probabilities.

JUDGMENT :

Marli Vankung, J.

Heard Mr. S.C. Pandit, learned counsel for the appellant. Also heard Ms. M. Choudhury, learned counsel for the respondent/Insurance Company.

2. The instant appeal is challenging the Judgment dated 12.08.2016 delivered by the learned Member, Motor Accident Claims Tribunal No.2, Kamrup (M), Guwahati in MAC Case No. 419 of 2012, wherein, the learned Tribunal had dismissed the claimed made by the claimant for compensation on account of the death of her son in a motor vehicle accident. The learned Tribunal held that the claimed petition is not maintainable under Section 166 M.V. Act since the claimant has failed to established that the accident occurred due to rash and negligent driving of the offending vehicle.

3. Brief facts of the cases as projected by the claimant was that on 21.12.2011, at about 5:20 P.M, at Maranjana Industrial Area, while the Tipper vehicle bearing registration No.AS-01-Y-5559 was filling earth and her deceased son Jogen Rajbongshi was keeping accounts of the same, suddenly the vehicle started moving backwards and the deceased fell down beneath of wheel of the said vehicle and died on spot.

4. The claimant file her claim application and stated that at the time of the death of her deceased son, who was doing private service, his salary was Rs.6,000/-p.m. and he was survived by the claimant and the father of the deceased. The claimant claimed compensation amounting to Rs.7,00,000/- (Rupees seven lakhs)only.

5. The opposite party contested the claimed and filed their written statement. The O.P. No.1 is the owner of the Tipper vehicle bearing Registration No.AS-01-Y-5559 which was involved in the alleged accident. In the written statement he had stated that the accident did not occurred due to rush and negligent driving of the said vehicle by his driver and further stated that at the time of the alleged accident the vehicle was duly insured with the O.P. No.3 vide insurance policy No.53090131100100003024 and therefore, if any compensation is to be awarded the same has to be relied from the O.P. No.3/Insurance Company. The O.P. No.2 Sh. Samsher Ali, the driver of the Tipper vehicle has averred at the time of the accident, he was not driving the said vehicle negligently. That he was driving the said vehicle with a valid driving license, and therefore he was not liable to pay any compensation to the claimant. The O.P. No.3 contested the case and had taken all the routine please denial the case of the claimant and prayed for dismissal of the claimed petition. From the pleadings, the following issues were framed :-

(i) Whether victim it. Jogen Rajbongshi died as a result of the injuries sustained by him in the alleged road accident dated 21.12.2011 involving vehicle No.AS-01-Y-5559, Tata Tipper and whether the said accident took p lace due to rash and negligent driving of the driver of the offending vehicle:

(ii) Whether the claimant is entitled to receive any compensation and if yes, to what extent and by whom amongst the opposite parties, the said compensation amount will be payable?

During the course of hearing the claimant examined only herself as PW No.1 while the opposite parties did not examine any witness.

6. PW No.1 narrated the facts of the case wherein at about 5:20 P.M, at Maranjana Industrial Area, while the Tipper vehicle bearing registration No.AS-01-Y-5559 was filling earth and her deceased son Jogen Rajbongshi was keeping accounts of the same, suddenly due to the rash and negligent driving of the Tipper started moving backwards and the deceased fell down beneath of wheel of the said vehicle and died on spot. After the Rangia Police registered the case No.515 of 2011 for the commission of offences punishable under section 279, 304(A) IPC against the driver of the said vehicle, the case was investigated and accordingly, chargesheet was filed against the driver of the offending vehicle under section 279, 304(A) IPC. Her deceased son, was aged 36 years and was doing private service, h