$~18 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 18^th December, 2024 + MAC.APP. 176/2024 SHRI RAM GEN. INS. CO. LTD.

1001, Ground Floor, Naiwala, Arya Samaj Road; Karol Bagh, New Delhi 110005.

.....Appellant Through: Mr. Mohd. Mustafa, Advocate.

Versus

1. SH. SWAPAN SAHA S/o. SH. Dhiren Saha R/o H.No B-148 J J Colony Sawada Mubarakpur, North-West Delhi

2. SMT. AMITA SAHA W/o Sh. Swapan Saha.

R/o H.No B-148 J J Colony Sawada Mubarakpur, North-West Delhi

3. SH. SOMEN (DRIVER)

S/o Sh. Manik Haldhar R/o H.No B- 612, Svada, Naglaoi Delhi 110081.

4. SH. CHANDAN BISWAS (OWNER)

S/o Sh. Chandi Charan Biswas Rio H. No 40B, Garhwali Mollaha Lax.mi Nagar Delhi 110092.

.....Respondent Through: Mr. Pankaj Gupta for Respondent no Signature Not Verified DigitallySigned By:VIKAS MAC.APP. 176/2024 Page 1 of 6

1 & 2.

CORAM:

HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA J U D G M E N T (Oral)

1. An Appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed on behalf of the Insurance Company against the Award dated 19.10.2023 vide which the compensation in the sum of Rs.27,68,000/- along with interest @7.5% per annum has been awarded to the Respondent No.1 and 2, the parents of the deceased- Sumit Saha.

2. The sole ground on which the Award has been challenged is that the deceased was travelling as a pillion rider on motorcycle No.DL7SCH-8686 which was being driven by Respondent No.3/Shri. Somen. The accident occurred as the motorcycle had slipped. There is no rashness or negligence proved on behalf of the driver and, therefore, the compensation should have been calculated under Section 163-A of the Motor Vehicle Act and not under Section 166 of the Motor Vehicle Act, 1988.

3. The leaned Counsel for the respondents submits that the negligence stands proved by the Detailed Accident Report and Investigation documents and the Ld. Tribunal has passed a well-reasoned Order with does not warrant any inference. Thus, the appeal is liable to be dismissed.

4. Submissions heard and record perused

5. The sole challenge of the Appellant is that despite there being no evidence on record of the accident having been caused due to the rash and negligent driving of Sh. Somen (who was driving the motorcycle/Offending Vehicle), the learned Tribunal has erred in granting compensation under Signature Not Verified DigitallySigned By:VIKAS MAC.APP. 176/2024 Page 2 of 6 Section 166 of the Motor Vehicle Act, 1988.

6. To consider whether the negligence of the Driver/Somen is established, reference may be made to the testimony of PW-1/ Sh. Swapan Saha, the father of the deceased has deposed that on 04.08.2019, deceased Suraj, aged 22 year was travelling as a pillion rider on the motorcycle bearing No.DL-7SCH-8686 (Apache) driven by his friend Somen, and they were going towards ITG from Laxmi Nagar. The driver/Somen was driving the Offending Vehicle/ Motorcycle at a very high speed, rashly, negligently and in a zig-zag manner. Though he was cautioned many times by the deceased, but driver did not pay any heed to advice/ warning given to him and continued driving the said motor cycle carelessly without observing the traffic norms. At about 04:50 a.m., when the motor cycle reached near Yamuna Pull towards ITO, Vikas Marg, the driver Somen lost his control over the motor cycle and slipped on the road. As a result of this, both sustained grievous injuries.

7. The deceased Sumit was taken to LNJP Hospital, New Delhi, by PGR, where his MLC No.113224500/2019 was prepared and he succumbed to the injuries during the course of treatment on 12.08.2019.

8. The Insurance Company had cross-examined PW-1 extensively on the manner in which the accident had occurred and he admitted that he was not the eye-witness. Aside from these questions, no further questions on the aspect of rashness and negligence were put in the cross-examination.

9. PW-2/Saroj Kumar, was the summoned who had called the PCR, who was the eye-witness to the accident. He had stated that he was going on his motorcycle an