Point of Law: Rash and negligent driving is sine qua non for maintaining claim petition seeking compensation in terms of provisions of Section 166 of Motor Vehicles Act held that plea of negligence set up by claimants is required to be decided by learned tribunal on touchstone of preponderance of probability and certainly not on basis of proof beyond reasonable doubt.

JUDGMENT :

Instant appeal filed under Section 173 of the Motor Vehicles Act ( for short ‘Act’),lays challenge to award dated 1.04.2017, passed by Motor Accident Claims Tribunal-I, Solan, District Solan, H.P., in M.A.C. No.24-S/2 of 2015, whereby learned Tribunal below while allowing the claim petition, having been filed by respondent-claimant (hereinafter referred to as the ‘claimant’) claiming therein compensation on account of death of Daya Nand i.e. son of the respondent-claimant in an accident, which took place on 28.12.2014, near Ded Gharat, Kandaghat involving truck/vehicle bearing registration No. HR-38-M-5943, owned by respondent No.1, driven by respondent No.2 and insured with appellant-respondent No.3, awarded compensation to the tune of Rs.9,14,000/- alongwith interest at the rate of 7.5% per annum from the date of filing of the petition till its realization in favour of the respondent-claimant. Since appellant-Insurance Company came to be saddled with liability to pay compensation being insurer of the ill-fated vehicle involved in the accident, it has approached this Court in the instant proceedings, praying therein to set-aside aforesaid impugned award primarily on following grounds:-

“1. Since negligence of respondent No.3 while driving the ill-fated vehicle never came to be proved in accordance with law by the claimant by leading cogent and convincing evidence, there was no occasion, if any, to award compensation, if any, under Section 166 of the Act on account of death of deceased Daya Nand.

2. In the absence of any evidence regarding employment of deceased as helper in the Crane of Laxmi Narayan, learned Tribunal below ought not have assessed income of deceased at the rate of Rs.6000/- per month. Since age of the claimant i.e. mother of the deceased was ‘57’ years, tribunal below while assessing the compensation wrongly applied multiplier of ‘16’ because it taking into consideration the age of the mother, ought to have applied multiplier of “7”.

2. Precisely, the facts of the case, as emerge from the record are that on 28.12.2014, near Ded Gharat, Kandaghat, a vehicle bearing registration No.HR-38-M-5943 being driven by respondent No.3, Maryam Ali hit the deceased Daya Nand i.e. son of the claimant-respondent, while he was crossing the road, as a consequence of which, he suffered multiple injuries. Though, the deceased was rushed to Zonal Hospital, Solan, but he was declared brought dead by the Medical Officer. The mater was reported to the police and FIR under sections 279 and 304-A IPC was registered at police Station, Kandaghat, District Solan, H.P. Since claimant being mother of the deceased was totally dependent upon the earning of her son, she filed a petition under Section 166 of the Act stating therein that her son Daya Nand died on account of rash and negligent driving of respondent No.3. She claimed that age of her son was 37 years and his monthly income was Rs.9000/- per month as he was working as helper in the Crane of Laxmi Naryan. She claimed that deceased used to contribute major portion of his income towards the family and on account of his untimely death, she has not only suffered financial loss but has been also deprived of love and affection of her deceased son and as such, entitled to compensation to the tune of Rs.50,00,000/-.

3. Aforesaid claim set up by the respondent-claimant came to be contested by respondents No.2 and 3 by filing reply taking therein preliminary objections regarding maintainability, cause of action and estoppel. On merits, though aforesaid respondents admitted the involvement of the vehicle in question in the accident on the relevant date and time, but specifically denied that the accident took place due to rash and negligence driving of respondent No.3. Both the respondents, as mentioned hereinabove, claimed that the accident took place due to negligence of the deceased hi