The requirement for the claimant to prove the case on the touchstone of the preponderance of probabilities and the insufficiency of evidence to substantiate the claim.

JUDGMENT

Lisa Gill, J. (Oral) - CM-27458-CII of 2018

Heard.

For the reasons mentioned in the application as well as arguments addressed, order dated 10.12.2018, whereby the appeal was dismissed in default is recalled. Appeal is restored at its original number and is taken up for hearing today itself.

Application is disposed of.

FAO No. 693 of 2018 (O&M)

2. This appeal has been filed by the appellant-claimant challenging award dated 17.09.2015, passed by the learned Motor Accident Claims Tribunal, Yamuna Nagar at Jagadhri (for short 'Tribunal'), whereby claim petition under Section 163-A of the Motor Vehicles Act (for short 'Act') filed by the appellant seeking compensation on account of injury sustained by him in a road side accident on 01.05.2014, has been dismissed.

3. As per averments in the claim petition under Section 163-A of the Act, on 01.05.2014,

Master Biraj (appellant) aged about two and a half/three years, along with his father-Rajesh Kumar, were going to the village from the fields on a motorcycle bearing registration no. HR-02-Y- 3899, which was being driven by Rajesh Kumar. The claimant/appellant was riding pillion. At about 12.00 noon, when they reached near Indira Awas Colony on Nagla Road, their motorcycle skidded on the road. As a result thereof, claimant fell down and sustained a fracture of his left arm and other injuries on his body. He was taken to Goel Hospital, Jagadhri, where he was operated upon for the fracture. D.D.R No. 7 dated 13.05.2014, was recorded at Police Station Radaur, in this respect.

4. Petition under Section 163-A of the Act was filed by the appellant-claimant before the learned tribunal.

5. Respondent no.1, who is none other but father of the appellant, filed a separate written statement denying any rashness or negligence on his part, though admitting the accident in question.

6. Respondent no.2-Insurance Company, filed a written statement raising various preliminary objections and denying the averments on merits. Respondent no.2 prayed for dismissal of the petition.

Following issues were framed by the learned tribunal:-

1. Whether the accident in question resulting into injuries of Bairaj took place on 01.05.2014 due to rash and negligent driving of motorcycle bearing registration no. HR-02-Y- 3899 by respondent no.1?OPP

2. Whether the petitioner is entitled to claim the compensation for the injury sustained by im in road side accident?OPP

3. Whether the vehicle in question was being driven in violation of the terms and conditions of the insurance policy? If so, to what effect?OPR-2.

4. Relief.

Issue no.1 was re-framed by the learned tribunal on 21.07.2015:-

1. Whether the claimant Biraj received injuries in a motor vehicular accident dated 01.05.2014 arisen out of the use of motorcycle bearing registration no. HR-02-Y-3899 ? OPP.

Both the parties led evidence in support of their respective claims/stands.

7. Learned Tribunal on considering the facts and circumstances of the case as well as evidence on record concluded that the appellant failed to prove that he suffered the injuries on 01.05.2014 due to the use of the motorcycle in question.

Aggrieved therefrom, present appeal has been filed by the appellant-claimant.

8. Learned counsel for the appellant vehemently argues that merely because DDR in this case was registered on 13.05.2014 and not on 01.05.2014 itself, is not sufficient to reject the appellant's claim. Medical evidence on record as well as oral testimony of the mother of the appellant and that of PW-5-Jeet Ram, an eye witness of the accident, clearly substantiates and proves the case set up by the appellant. The appellant, it is submitted was two and half years old at the time of the accident. He suffered 5% permanent disability, therefore the learned tribunal has grossly erred in dismissing the claim petition. It is thus prayed that the impugned award be set aside thereby allowing the claim petition preferred by the appellant-claimant.

9. I have heard learned counsel for