In a claim petition under Section 166 of the Motor Vehicles Act, the claimants must prove the negligence of the driver and the involvement of the vehicle. However, the principle of res ipsa loquitur applies when the cause of the accident is within the primary knowledge of the driver, who chooses not to appear in the witness box.

JUDGMENT :

BIRENDRA KUMAR, J.

1. The insurer of the offending vehicle has brought this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) challenging the award dated 22.1.2019 made in Claim Case No. 186/2016 by the Motor Accident Claims Tribunal, Jhunjhunu whereby the learned Tribunal awarded compensation of Rs. 65,94,000/- in favour of respondents No. 1 to 5 along with interest of 7.5% per annum from the date of filing of the claim petition. Respondents No. 1 to 5 had claimed Rs. 2,72,70,000/-. The owner-cum-driver of the vehicle, respondent No. 6, did not contest the claim case nor appeared in this appeal. In the circumstance, the defence available to respondent No. 6 was/is available to the appellant also.

2. The case and claim of the respondent-claimants is that on 21.4.2016, Vijendra Singh, the husband of claimant Smt. Shubhla and parent of claimant-respondents No. 2 and 3 as well as son of respondent No. 4 and 5, was travelling in a Swift Dezire Car bearing Registration No. MH-49-B-6665. The owner-cum-driver of the Car was rash and negligent and lost balance, as a result whereof the motor vehicle accident took place. The driver and Vijendra both sustained injuries. Vijendra died in the hospital.

At the time of his death, Vijendra was a Teacher Grade III, aged 35 years and he was earning Rs. 32,000/- per month. Only the appellant contested the claim case.

3. The appellant denied the averments made in the claim petition and pleaded that the driver had no driving licence. There is delay in lodging of the FIR. Charge-sheet has been submitted in collusion with the police. The vehicle was being driven in contravention of the terms and conditions of the insurance policy. Excess and exorbitant amount has been claimed by the claimants.

4. Mr. Virendra Agarwal, learned counsel for the appellant strenuously contends that in a claim petition under Section 166 of the Motor Vehicle Act, the claimants must plead and prove the negligence of the driver as well as involvement of the vehicle. Since no eye-witness of the accident has been examined, the accident caused by rash and negligent driving or involvement of the vehicle ensured with the appellant remained unproved. Learned counsel for the appellant has placed reliance on the judgment of the Hon’ble Supreme Court in Surinder Kumar Arora and Another vs. Dr. Manoj Bisla and Others, 2012 MACD (SC) 126.

In Arora’s case (supra) the Hon’ble Apex Court referred its earlier judgment in Oriental Insurance Company Limited vs. Meena Variyal, (2007) 3 SCC 428, which is being reproduced below:

“......Therefore, the victim of an accident or his dependants have an option either to proceed under Section 166 the Act or under Section 163A the Act. Once they approach the Tribunal under Section 166 the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed under Section 163A the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependants to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle.”

5. Learned counsel contends that the learned Tribunal has relied upon documents of the criminal case of the incident i.e. FIR, site plan, site inspection memo, vehicle inspection memo and post mortem report without any direct evidence on the factum of accident due to rash and negligent driving. Learned counsel submits that in Cholamandalam General Insurance Company Limited vs. Smt. Badami and Others, 2018 (2) RAR 587 (Raj.) a Single Judge Bench of this Court held that in absence of any eye-witness of the incident, the claimants failed to prove and establish a case of rash and negligent driving. The court reasoned that if the eye-witness would have come to the witness box, the respondents would have got an opportunity to cross-examine and test the veracity of the witness.

6.