Delhi High Court
Icici Lombard General Insurance ... vs Jitender Kumar & Ors on 24 February, 2015
Author: G.P. Mittal
$-15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 24th February, 2015
+ MAC.APP. 334/2013
ICICI LOMBARD GENERAL INSURANCE CO. LTD.
..... Appellant
Through: Mr. A, K. Soni, Advocate
versus
JITENDER KUMAR & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The appeal is directed against the impugned judgment dated
04.01.2013 passed by the Motor Accident Claims Tribunal(the
Claims Tribunal) whereby compensation of Rs.3,83,348/- was
awarded for the death of Smt. Premwati, who died in a motor
vehicular accident which occurred on 25.10.2010 at about 6:00
p.m.
2. While dealing with the issue of negligence, the Claims Tribunal
held as under:
"ISSUE NO.2
ii) Whether petitioner prove that
deceased suffered fatal road accident on
25.10.2010 involving scooter Honda Activa
bearing registration no. DL- 7SBF-9712 being
driven allegedly in a rash and negligent
manner by R1?
16.In order to determine the question of rash and
negligent driving of offending vehicle bearing
registration no. DL-7S-BF-3312 the testimony of PW1
Jitender Kumar is very much relevant. He specifically
deposed that on 25.10.2010 at about 6 p.m mother of
petitioner(deceased herein), was going on foot to her
house situated at Khichri Pur and when she reached
near 5 Block, in the meantime a scooter make Honda
Activa bearing registration no. DL-7S-BF- 3312
which was being driven by its driver in a rash and
negligent manner reached there and hit her. Due to
forceful impact she fell down on the road and was
immediately taken to Lal Bahadur Shastri Hospital.
She was got medically examined vide MLC no.
11718/10. Later on she was shifted to Safdarjung
hospital but during treatment she expired on
28.10.2010. Postmortem was got conducted vide PM
report no.1010UKG165.
17.The testimony of PW1 find support from the police
report filed u/s 158(6) of MV Act. The report shows
that case was registered vide FIR no.346/10 and
injured was got admitted in the hospital. The
averments mentioned in the FIR corroborates the
deposition of PW1. This fact further corroborates with
the MLC bearing no. 11718/10 of the deceased
wherein it is mentioned that Premwati aged about 60
years female with alleged history of RTA was brought
to hospital. The postmortem of dead body was got
done. Postmortem report Ex.PW.1/3 clearly shows
that the cause of death in this case is due to shock due
to antimortem injury to head produced by blunt force
impact.
18.During cross examination of PW1 nothing has
come on record to show that his version suffers from
any infirmity, rather his testimony is further
corroborated by documentary evidence thereby it is
established that death of Premwati in the present case
has taken place due to rash and negligent driving of
the offending vehicle bearing No. DL-7SBF-3312
which was being driven by R1. Accordingly, I decide
this issue in favour of petitioner and against the
respondent."
3. It is true that in order to claim compensation in a petition under
Section 166 of the Motor Vehicles Act, 1988(the Act), a
claimant is not required to prove negligence beyond shadow of
all reasonable doubt. But at the same time, proof of negligence
is sine qua non to succeed in a claim petition under Section 166
of the Act. Thus, negligence has to be established on the
touchstone of preponderance of probability.
4. It is very unfortunate that the Claims Tribunal solely relied
upon the testimony of the Petitioner who was the son of the
deceased and was not an eye witness to the incident. The
Claims Tribunal did not make any effort to summon the eye
witness cited in the case or to analyse the circumstantial
evidence to find out if at all there was any negligence on the
part of the driver of the offending vehicle two wheeler make
Honda Activa bearing no.DL-7S-BF-3312.
5. In view of this, finding of negligence cannot be sustained; the
same is accordingly set aside.
6. The case is remanded back to the Claims Tribunal for
examining the eye witness, I.O. of the case or any other relevant
witness and then to decide the issue whether negligence has
been proved on the test of preponderance of probability or not.
7. The Claims Tribunal shall record the evidence and endeavour to
give its finding within a period of three months from the date of
hearing fixed by the Court.
8. Parties are directed to appear before the Claims Tribunal on
09.03.2015.
9. TCR be transmitted to the Claims Tribunal through Special
Messenger along with a copy of the order.
10. List the appeal before the Court on 24.09.2015.
(G.P. MITTAL)
JUDGE
FEBRUARY 24, 2015
pst
