IMPORTANT POINT
The court established that the burden of proof in negligence claims is on the claimants, requiring only a preponderance of probability to establish liability.

JUDGMENT :

Nupur Bhati, J.

1. The instant civil misc. appeal no. 1042/2017 has been preferred by the appellant/Insurance Company under Section 173 of the Motor Vehicles Act, 1988 (hereinafter as ‘the Act’) assailing the judgment and award dated 18.01.2017 (hereinafter as ‘the impugned award’) passed by learned Judge, Motor Accident Claims Tribunal, Pali (hereinafter as ‘the learned Tribunal’) in MAC Case No. 76/2017 whereby the learned Tribunal partly allowed the claim petition filed by the appellant/claimants under Section 166 of the MV Act and awarded compensation of Rs.39,02,085/-, in favour of respondent/claimants along with interest @ 9% p.a. from the date of filing the claim petition, while fastening the liability upon the respondent no.7/owner and respondent no.6/driver along with the appellant/Insurance Company, jointly and severally.

2. Briefly stated the facts of the case are that on 08.09.2014, Sikandar Khan, Gopilal@Goparam, Mahaveer Singh and Bharat Mehta were travelling in the car bearing registration no. RJ19 temperory 183688, which was being driven by Bharat Mehta (hereinafter as ‘the driver of the car’), (hereinafter as ‘the car’) from Balotara to Loonkaransar and at around 7:00 AM- 7:30AM the truck-trolla bearing registration no. GJ12AT9222 (hereinafter as ‘the offending vehicle’), which was being driven rashly and negligently by respondent no.6/driver came from the opposite side and dashed into the car. As a result of the accident all the four persons travelling in the car died on the spot. The FIR no. 86/2014 (Ex.4) was lodged and the police after investigation filed chargesheet (Ex.2) against the respondent no.6/driver under Section 279,304A, IPC. Subsequently, the MAC case no. 76/2015 was filed by the respondent/claimants under Section 166 of the Act claiming compensation on account of the death of Mahaveer Singh (hereinafter as the deceased) before the learned tribunal.

4. The respondent no.6/driver and respondent no.7/owner of the offending vehicle were proceeded against ex-parte as the notices served upon them did not return even after the expiry of 30 days from the service upon them.

5. The appellant/insurance company in its reply to the claim petitions denied the averments made thereunder and averred that the accident occurred due to the negligence of driver of the car and the driver of the car himself is liable for contributory negligence.

6. On the basis of the pleadings of the parties, the learned tribunal framed four issues which are being reproduced as under:

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7. The claimants examined two witnesses namely- Indubala (AW-1) and Mohan Singh Rathore (AW-2) and produced 16 documentary evidences (from Ex.1 to Ex.16). However, no evidence was produced by the appellant/insurance company.

8. The respondents/claimants contended before the learned tribunal that the accident occurred due to the rash and negligent driving of the respondent no.6/driver of the offending vehicle. And the police after investigation have filed the Chargesheet (Ex.2) against the respondent no.6/driver.

9. On the other hand, it was contended by the insurance company before the learned tribunal that the car, being driven in a rash