In motor accident claim proceedings, the tribunal must determine negligence based on the preponderance of probability rather than proof beyond reasonable doubt. The existence of a FIR and a chargesheet against the driver is sufficient prima facie evidence of negligence, even in the absence of eye-witness testimony.

JUDGMENT

ANISH DAYAL, J: (ORAL)

1. This appeal has been filed assailing the judgment dated 27th January 2025, passed by the Motor Accidents Claims Tribunal (‘MACT’), South East District, Saket Courts in MACT No.751/2018, dismissing the claim petition. Claim petition as well as this appeal has been preferred by the wife of the deceased Sh. Kapil, who was travelling on the pillion of a two wheeler driven by one Ashish/ respondent no.1 on 17th March 2018.

2. The two-wheeler had apparently skid and fallen near the AIIMS flyover and injury was sustained by the deceased Sh. Kapil, who was under treatment vide MLC No.5000844440/2018. Sh. Kapil was unconscious and declared unfit for statement by the doctor as is evident from the Medico-Legal Certificate (‘MLC’). The MLC further notes very clearly that the informant was a relative named Ashish and that late Sh. Kapil was a pillion rider on two-wheeler vehicle which skid and fell near INA.

3. Counsel for appellant, therefore, states that these facts stand admitted basis the record.

4. Insurance company/respondent no.2 was exonerated by the MACT on the ground that the negligence of the driver was not proved. MACT relied upon case law to conclude that when the claimant has failed to prove that the damage was caused to the vehicle because of rash and negligent driving, no compensation could be awarded.

5. The issue, therefore, rotates around the aspect of rash and negligent driving by Ashish, who was admittedly the driver of the two-wheeler.

6. Counsel for appellant points out that an FIR No.86/2018 dated 18th March 2018 was registered under Sections 279/304A of Indian Penal Code, 1860 (IPC) and a chargesheet was filed implicating Ashish/ respondent no.1.

7. Investigating Officer (‘IO’), SI Pradeep Kumar was examined as PW-3, where he stated that no other vehicle was involved in the accident and that late Sh. Kapil was the pillion rider on the two-wheeler, while Ashish was driving the scooty in a ‘rash and negligent manner’. PW-3 states that basis this statement/disclosure statement of Ashish, recorded before the IO and not before the Magistrate, a case of rash and negligent driving was registered.

8. Pursuant to a Court question as to how the IO had come to the conclusion that respondent no.1 was driving in rash and negligent manner, the reply was as under “on the basis of disclosure of the R-1, mechanical inspection report of the vehicle and injury of deceased Kapil, I concluded that the R-1 was driving the vehicle rashly and negligently”.

9. Counsel for respondent states that since there was no eye-witness to the accident, a presumption cannot be made that the accident was due to the rash and negligent driving of Ashish/ respondent no.1 and, therefore, the claim could not be sustained.

10. Counsel for appellant states that the liability of insurance company to cover the claim of deceased, would be covered by the policy under third party liability and as regards the issue of rash and negligent driving, the FIR and the chargesheet ought to have been taken into account by the MACT. Further, insurance company has also not ensured evidence of respondent no.1 nor was he brought into the witness box.

11. In support, he relies upon the decision of this Court in MAC.APP. 90/2024 titled as “ Oriental Insurance Co. Ltd. v. Kusum ”, which was a case of death by hit and run by a truck. Objection which was taken by the insurance company therein, was also that there was no eye-witness examined to establish the rash and negligent driving o