MAC.APP. 174/2021 Page 1/38

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on : 6

th

February 2026

Pronounced on : 17

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April 2026

Uploaded on : 18

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April 2026

+ MAC.APP. 174/2021 & CM APPL. 14103/2021

THE ORIENTAL INSURANCE CO LTD .....Appellant

Through: Mr. A.K. Soni, Adv.

versus

SUNITA SINGH & ORS. .....Respondents

Through: Mr. Aseem Mehrotra and Ms.

Deeksha Mehrotra Advs. for R-1 to 4.

CORAM:

HON'BLE MR. JUSTICE ANISH DAYAL

JUDGMENT

ANISH DAYAL, J.

1. This appeal has been filed by the Insurance Company assailing the

impugned judgment and award dated 26

th

November 2020 passed in MACP

No.249/2017 by Motor Accidents Claims Tribunal [‘MACT’], Saket Courts,

New Delhi (hereinafter, ‘Tribunal’) whereby, the Tribunal allowed a total

sum of Rs.63,81,940/- as compensation to be paid to the claimants, along

with interest at the rate of 7.5% from the date of filing the petition within 30

days, failing which interest to be paid at the rate of 12% per annum for the

delayed period.

MAC.APP. 174/2021 Page 2/38

2. Appellant/Insurance Company is agitating the appeal essentially on

the ground that the Tribunal relied merely on criminal record of respondent

no.5/driver, despite negligence not having been proved by respondent nos. 1

to 4 (hereinafter, ‘claimants’) who failed to produce any eyewitness even

after the matter was remanded back to the Tribunal. According to

appellant/Insurance Company, the motorcycle driver-Pawan Kumar should

have been held solely or at least contributorily negligent. Moreover,

compensation awarded by the Tribunal has been challenged as being

exorbitant and unsustainable, since the income of deceased was wrongly

assessed by adding annual commission given by Life Insurance Corporation

(‘LIC’), without any proof of actual loss; incorrectly deducted 1/4

th

towards

personal expenses by treating father of deceased as a dependent. Challenge

was also on the award of interest at 7.5% with penal interest at 12%.

The Incident

3. The incident occurred on 24

th

September 2010 at about 8:10 a.m.,

when Anupam Kumar Singh (hereinafter, ‘deceased’) was traveling on a

motorcycle bearing no. DL-6ST-9807 with his colleague, Pawan Kumar,

from Naraina towards Munirka. When they reached Moti Bagh Flyover, a

bus bearing no.DL-lPB-3806 driven rashly and negligently by respondent

no.5, hit the motorcycle from behind causing fatal injuries to the deceased.

The offending vehicle/bus was owned by respondent no.6 and insured with

appellant/Insurance Company. Deceased was about 35 years of age at the

time of accident and was working as senior manager/ commission agent and

earning approximately about Rs.38,500/- per month.

MAC.APP. 174/2021 Page 3/38

4. Claim petition was filed by his wife, daughter and parents seeking

compensation. Driver and owner of the offending vehicle appeared but did

not file their written statements, while the insurer contested the claim.

Impugned award

5. The claim was originally decided by Tribunal vide order dated 31st

October 2012 and had returned a finding that death had occurred due to

involvement of offending vehicle/bus and negligent driving of the bus

driver, primarily on basis of statement of PW-1 (wife of deceased /claimant)

and copy of investigation proceedings in FIR No. 308/2010 registered at P.S.

R. K. Puram. Appellant/Insurance Company filed an appeal MAC.APP.

No.172/2013 which was disposed of by this Court on 9

th

May 2016 noting

the contentions of Insurance Company that no evidence was adduced about

the involvement of offending vehicle/bus and negligence on the part of its

driver and that PW-1, the solitary witness examined, was admittedly not an

eye witness. Matter was then remanded back to Tribunal with liberty granted

to claimants to lead further evidence and for contesting parties to cross

examine witnesses, pursuant to which the Tribunal could pass a fresh

judgment. Post the remand, the impugned judgement and award have been

passed.

6. Tribunal took note of the details of accident and that FIR No.

308/2010 was registered on 25

th

September 2010 at P.S. R. K Puram, basis

statement of Pawan Kumar/driver of the motorcycle. Statement of Pawan

Kumar was recorded as Ex.PW1/A in the criminal proceedings, FIR was

exhibited as Ex.PW1/B and post-mortem report of deceased was exhibited as

MAC.APP. 174/2021 Page 4/38

Ex.PW1/C.

7. Wife of deceased examined herself as PW-1, tendered her affidavit as

Ex. PW-1/1 and referred to documents i.e. copy of bank passbook, attested

copy of FIR, post-mortem report, salary certificate and Form 16A issued by

LIC and Bajaj Capital Limited in her support. For proving the income of

deceased, claimants examined Sh. Sudeep Kumar, working as Assistant

Administrative Officer with LIC India. Respondents did not choose to lead

any evidence.

8. Counsel for claimants, argued that the accident occurred due to rash

and negligent act of bus driver; eye-witness could not be examined due to

non-availability, but he had been examined in Criminal Court on 18

th

February 2012 and had relied on said evidence led before the Court. Counsel

for appellant/Insurance Company objected to reliance on certified copy of

evidence of witness in a criminal case, since they did not get a chance to

cross-examine the witness.

9. Tribunal however, relied upon statement of Pawan Kumar made

before the Criminal Court, wherein, he had categorically stated that the

offending vehicle/bus had hit the motorcycle from behind and consequently,

he along with Anupam Kumar Singh/deceased fell down due to impact of

accident and the deceased came under bus and expired. Since chargesheet

had been filed and witness had been examined before the Criminal Court, the

fact that the witness was not examined before Tribunal was not considered as

a factor to dismiss the claim.

10. Factum of accident had not been denied. As per the SI Janak Raj IO,

MAC.APP. 174/2021 Page 5/38

Inspector Mahavir, Traffic Inspector, Delhi Cantt, who handed over the

accused driver to him, the deceased was found lying beneath offending

vehicle/bus at the center part, length wise. Accordingly, the Tribunal held

that deceased suffered fatal injuries due to rash and negligent driving of

offending vehicle/bus.

Compensation Awarded by Tribunal

11. Since deceased was working as Senior Manager (Accounts and

Finance) in Sinewave Technologies Inc. with annual salary of Rs.4,31,000/-,

Rs.9,600/- was deducted towards personal allowances, an amount of

Rs.4,21,400/- per annum was determined as his income. Apart from this, the

deceased was working with LIC as an insurance agent and earning

commission of Rs.30,000/- per annum on average (Rs.35,916/- in one year,

Rs.38,000/- for next year), which was added to this amount. Therefore,

annual income was worked out to Rs.4,51,400/-

12. Relevant multiplier of 16 was taken considering the deceased was 35

years on the date of accident, 25% was added towards future prospects and

1/4

th

was deducted on account of personal expenses, since the Tribunal

accounted for all the family members. Loss of dependency was calculated at

Rs.61,91,940/- and the total compensation was calculated at Rs.63,81,940/-,

along with interest at the rate of 7.5% per annum.

Analysis

13. Countering the submission made by appellant/Insurance Company

that due to lack of examination of eyewitness before the MACT, reliance on

MAC.APP. 174/2021 Page 6/38

statement of Pawan Kumar/driver made in the criminal proceedings could

not be taken into account and therefore, liability could not be fastened on

appellant/Insurance Company, since no negligence was established, Mr.

Aseem Malhotra, counsel for claimants, made the following submissions:

(i) Facts of the accident could not have been doubted, as the deceased

was found underneath the bus and FIR was subsequently,

registered on 25

th

September 2010 against respondent no.5/bus

driver.

(ii) FIR was registered on the basis of statement of Pawan Kumar, who

was driving the motorcycle and the deceased was sitting as a

pillion rider. According to the statement of Pawan Kumar, they

had descended from the flyover at about 8.10 p.m. when the bus

(offending vehicle), driven by respondent no.5, hit their motorcycle

from behind.

(iii) Respondent No.1/Wife of deceased was cross-examined but no

suggestion was given to her that the accident did not take place on

account of rash and negligent driving of respondent no.5/bus driver

(iv) Appellant/Insurance Company did not lead any evidence and no

written statement was filed by respondent no.5/bus driver and

respondent no.6/bus owner. Moreover, appellant/Insurance

Company did not summon the bus driver to be examined as a

witness.

(v) Chargesheet was filed on 25

th

February 2011 along with the

Medico-Legal Certificate (‘MLC’) of deceased and Pawan Kumar.

MAC.APP. 174/2021 Page 7/38

In the criminal proceedings, Pawan Kumar was examined as

PW-1. In his examination-in-chief he stated that the motorcycle

was being driven by him which was hit by the offending

vehicle/bus in question and due to the impact of accident, the two

of them fell down. He stated that the offending vehicle/bus was

coming at high speed. In his cross examination by the APP, he

admitted that in Ex. PW-1/A, he had stated that the accused was

driving the bus in a rash and negligent manner and further,

admitted the site plan which was prepared at his instance. IO was

examined as PW-2.

14. Claimants tried to contact Pawan Kumar though his mobile number,

residential address and office address, however the mobile number was

found non-existing and office address was ‘closed’ and at his residential

premises they were informed that Pawan Kumar does not stay there.

15. The following judgments have been relied upon by Mr. Aseem

Malhotra, Advocate in support of his submissions:

(a) National Insurance Company Ltd. vs. Smt.

Pushpa Rana & Ors. 2007 SCC OnLine Del 1700;

(b) New India Assurance Company Ltd. vs. Smt.

Pooja Bhatia & Ors. 2013 SCC OnLine Del 1615;

(c) Dulcina Fernandes and Others vs. Joaquim

Xavier Cruz and Anr. (2013) 10 SCC 646

(d) Sunita and Others vs. Rajasthan State Road

MAC.APP. 174/2021 Page 8/38

Transport Corporation and Anr. (2020) 13 SCC 486

(e) Vimla Devi and Others vs. National Insurance

Company Limited and Ors. (2019) 2 SCC 186

(f) Mathew Alexander vs. Mohammed Shafi & Anr.

2023 INSC 621

16. Countering the same, Mr. A.K. Soni, counsel for appellant/Insurance

Company has relied upon the following decisions in support of his

submissions:

(a) Minu B. Mehta & Anr. Vs. Balkrishna

Ramchandra Nayan & Anr. (1977) 2 SCC 441

(b) Oriental Insurance Co. Ltd. Vs. Meena Variyal

&Ors. (2007) 5 SCC 428

(c) New India Assurance Co. Ltd. Vs. Devki & Ors.

2016:DHC:1735

(d) Surender Kumar Arora & Anr. Vs. Dr. Manoj

Bisla & Ors. 2012 (4) SCC 552

(e) Sarla Verma v. DTC (2009) 6 SCC 121

17. It would be essential to examine what has been stated in these

decisions which have been considered below in chronological order.

18. In order to establish that the accident took place due to rash and

negligence of the bus driver, reliance was placed upon Pushpa Rana

(supra), wherein this Court held that mere filing of FIR and charge sheet

serve as sufficient proof to determine that the driver of offending vehicle was

negligent. Relevant observations of this Court are extracted as under:

MAC.APP. 174/2021 Page 9/38

“12. The last contention of the appellant insurance

company is that the respondents claimants should have

proved negligence on the part of the driver and in this

regard the counsel has placed reliance on the

judgement of the Hon'ble Supreme Court in Oriental

Insurance Co. Ltd. v. Meena Variyal; 2007 (5) SCALE

269. On perusal of the award of the Tribunal, it

becomes clear that the wife of the deceased had

produced (i) certified copy of the criminal record of

criminal case in FIR No. 955/2004, pertaining to

involvement of the offending vehicle, (ii) criminal

record showing completion of investigation of police

and issue of charge sheet under Section 279/304-A, IPC

against the driver; (iii) certified copy of FIR, wherein

criminal case against the driver was lodged; and (iv)

recovery memo and mechanical inspection report of

offending vehicle and vehicle of the deceased. These

documents are sufficient proofs to reach the conclusion

that the driver was negligent. Proceedings under Motor

Vehicles Act are not akin to proceedings in a civil suit

and hence strict rules of evidence are not required to be

followed in this regard. Hence, this contention of the

counsel for the appellant also falls face down. There is

ample evidence on record to prove negligence on the

part of the driver.”

(emphasis added)

19. Further reliance was placed on Pooja Bhatia (supra), where this Court

upheld the Tribunal’s finding on negligence by perusing through the FIR and

chargesheet, which were also proved by the ASI in-charge of investigation

the criminal case. SLP No. 38095/2013 was filed against this decision,

however, the same was dismissed by the Apex Court on 13

th

December

2013. Relevant observations of this Court are extracted as under:

MAC.APP. 174/2021 Page 10/38

“14. I have heard ld. Counsels for the parties. As far as

the issue of negligence is concerned, claimants have to

prove either by examining the witnesses or by the

criminal record. In the present case PW-2 Shri Charles

Tirkey, ASI, who investigated the FIR No. 299/2007

registered at PS Delhi Cantt has been examined to

prove the aforesaid FIR Exhibit PW-2/1, Charge Sheet

as Exhibit PW-2/2, DD Report as Exhibit PW-2/3 and

rough site plan as Exhibit PW-2/4. The aforesaid

witness also proved the seizure memo of the offending

vehicle as Exhibit PW-2/5 and notice issued under

Section 133 of the Act as Exhibit PW-2/6. Moreover, the

aforesaid PW-2, who was the IO of the case, also

proved the superdari order of the vehicle Exhibit

PW-2/7 and order of the ld. MM by which the driver of

the offending vehicle was charged as Exhibit PW-2/8.

15. Apart, the statement of Shri Vikram recorded under

Section 161 Cr.PC proved as Exhibit PW-2/12 and

MLC of Sanjay Bhatia, deceased, has been proved by

him as Exhibit PW-2/13. Post-mortem report has also

been proved as Exhibit PW-2/14. Seizure memo of

driving licence of the driver Ranjit Singh is proved vide

Exhibit PW-2/15.”

(emphasis added)

20. The second contention raised by counsel for claimants, relates to

preponderance of probabilities and reliance was placed upon the decision of

Supreme Court in Dulcina Fernandes (supra) where the Court reversed the

finding on negligence and held that prima facie negligence can be adduced,

in cases where there is sufficient material to put the accused on trial. It is trite

law that the evidence has to be examined on preponderance of probabilities

and standard of proof beyond reasonable doubt cannot be applied in such

MAC.APP. 174/2021 Page 11/38

cases. Relevant paragraphs are extracted as under for reference:

“8. In United India Insurance Co. Ltd. v. Shila

Datta [(2011) 10 SCC 509 : (2012) 3 SCC (Civ) 798 :

(2012) 1 SCC (Cri) 328] while considering the nature of

a claim petition under the Motor Vehicles Act, 1988 a

three-Judge Bench of this Court has culled out certain

propositions of which Propositions (ii), (v) and (vi)

would be relevant to the facts of the present case and,

therefore, may be extracted hereinbelow: (SCC p. 518,

para 10)

“10. (ii) The rules of the pleadings do not strictly

apply as the claimant is required to make an

application in a form prescribed under the Act. In

fact, there is no pleading where the proceedings

are suo motu initiated by the Tribunal.

***

(v) Though the Tribunal adjudicates on a claim

and determines the compensation, it does not do so

as in an adversarial litigation. …

(vi) The Tribunal is required to follow such

summary procedure as it thinks fit. It may choose

one or more persons possessing special knowledge

of and matters relevant to inquiry, to assist it in

holding the enquiry.

…

10. The cases of the parties before us will have to be

examined from the perspective of the principles and

propositions laid down in Bimla Devi case [(2009) 13

SCC 530 : (2009) 5 SCC (Civ) 189 : (2010) 1 SCC (Cri)

1101] and Shila Datta [(2011) 10 SCC 509 : (2012) 3

SCC (Civ) 798 : (2012) 1 SCC (Cri) 328] . While it is

correct that the pillion rider could have best unfolded

the details of the accident what cannot be lost sight of is

the fact that while the accident occurred on 29-6-1997

the evidence before the Tribunal was recorded after

MAC.APP. 174/2021 Page 12/38

seven years i.e. in the year 2004. Keeping in view the

nature of the jurisdiction that is exercised by a Claims

Tribunal under the Act we do not think it was correct on

the part of the learned Tribunal to hold against the

claimants for their failure or inability to examine the

pillion rider Rosario Antao as a witness in the case.

Taking into account the hapless condition in which the

claimants must have been placed after the death of their

sole breadwinner and the sufficiently long period of

time that has elapsed in the meantime, the learned

Tribunal should not have treated the non-examination

of the pillion rider as a fatal and fundamental law to the

claim made before it by the appellant.”

(emphasis added)

21. In order to fortify their argument, further reliance was placed on

Supreme Court’s decision in Sunita (supra) where the Court reiterated that

once the foundational fact of the accident stands established, the Tribunal’s

task is to determine just compensation on the basis of the material placed

before it and that the Tribunal is not strictly bound by the pleadings of

parties. Moreover, standard of proof should be one of preponderance of

probabilities, decisively holding that the absence of testimony of pillion rider

(therein) shall not be detrimental to claimants’ case, as the Courts should not

adopt a hyper technical in such cases. Relevant findings are extracted as

under:

“34. Similarly, the issue of non-examination of the

pillion rider, Rajulal Khateek, would not be fatal to the

case of the appellants. The approach in examining the

evidence in accident claim cases is not to find fault with

non-examination of some “best” eyewitness in the case

but to analyse the evidence already on record to

MAC.APP. 174/2021 Page 13/38

ascertain whether that is sufficient to answer the

matters in issue on the touchstone of preponderance of

probability. This Court, in Dulcina Fernandes [Dulcina

Fernandes v. Joaquim Xavier Cruz, (2013) 10 SCC 646

: (2014) 1 SCC (Civ) 73 : (2014) 1 SCC (Cri) 13] , faced

a similar situation where the evidence of the claimant's

eyewitness was discarded by the Tribunal and the

respondent was acquitted in the criminal case

concerning the accident. This Court, however, took the

view that the material on record was prima facie

sufficient to establish that the respondent was negligent.

In the present case, therefore, the Tribunal was right in

accepting the claim of the appellants even without the

deposition of the pillion rider, Rajulal Khateek, since

the other evidence on record was good enough to prima

facie establish the manner in which the accident had

occurred and the identity of the parties involved in the

accident.”

(emphasis added)

22. This stance has been reiterated by the Supreme Court in Vimla Devi

(supra) where claimants were not disentitled to the claim due to

non-exhibition of documents, when there was sufficient material on record

to establish the identity of offending vehicle. Keeping in view the beneficial

nature of legislation and the evidence put forth by claimants, the Court

awarded compensation and made the relevant findings extracted

hereinbelow:

“20. Keeping in view the aforementioned principle of

law, when we examine the facts of the case at hand, we

are of the considered opinion that the Claims Tribunal

and the High Court were not justified in dismissing the

appellants' claim petition. In our view, the appellants'

MAC.APP. 174/2021 Page 14/38

claim petition ought to have been allowed for awarding

reasonable compensation to the appellants in

accordance with law. This we say for the following

reasons:

20.1. Firstly, the appellants had adduced sufficient

evidence to prove the accident and the rash and

negligent driving of the driver of the offending

vehicle, which resulted in death of Rajendra Prasad.

20.2. Secondly, the appellants filed material

documents to prove the factum of the accident and

the persons involved therein.

20.3. Thirdly, the documents clearly established the

identity of the truck involved in the accident, the

identity of the driver driving the truck, the identity of

the owner of the truck, the name of the insurer of the

offending truck, the period of coverage of insurance

of the truck, the details of the lodging of FIR in the

police station concerned in relation to the accident.

20.4. In our view, what more documents could be

filed than the documents filed by the appellants to

prove the factum of the accident and the persons

involved therein.

20.5. Fourthly, so far as the driver and owner of the

truck were concerned, both remained ex parte since

inception and, therefore, neither contested the

appellants' claim petition nor entered into the witness

box to rebut the allegations of the appellants made in

the claim petition and the evidence. An adverse

inference against both could be drawn.

20.6. Fifthly, so far as the Insurance Company is

concerned, they also did not examine any witness to

MAC.APP. 174/2021 Page 15/38

rebut the appellants' evidence. The Insurance

Company could have adduced evidence by examining

the driver of the offending truck as their witness but it

was not done….”

(emphasis added)

23. Culling out the law on proof of negligence and considering that the

matter has to be decided on preponderance of probabilities and not on the

basis of proof beyond reasonable doubt, the Supreme Court in its decision in

Mathew Alexander (supra) reiterated previous decisions of Bimla Devi v.

Himachal Road Transport Corporation (2009) 13 SCC 530 and Dulcina

Fernandes (supra), noting as under:

“9. Insofar as the claim petition filed by the Appellant

herein is concerned, alleged negligence on the part of

the driver of the tanker lorry and pickup van in causing

the accident has to be proved. That is a matter which

has to be considered on the basis of preponderance of

the possibilities and not on the basis of proof beyond

reasonable doubt. It is left to the parties in the claim

petitions filed by the Appellant herein or other

claimants to let in their respective evidence and the

burden is on them to prove negligence on the part of the

driver of the Alto car, the tanker lorry or pickup van, as

the case may be, in causing the accident. In such an

event, the claim petition would be considered on its own

merits. It is needless to observe that if the proof of

negligence on the part of the drivers of the three

vehicles is not established then, in that event, the claim

petition will be disposed of accordingly.

In this context, we could refer to judgments of this

Court in the case of N.K.V. Bros. (P) Ltd. vs. M.

Karumai Anmal reported in AIR 1980 SC 1354, wherein

MAC.APP. 174/2021 Page 16/38

the plea that the criminal case had ended in acquittal

and that, therefore, the civil suit must follow suit, was

rejected. It was observed that culpable rashness

under Section 304-A of IPC is more drastic than

negligence under the law of torts to create

liability. Similarly, in (2009) 13 SCC 530, in the case

of Bimla Devi vs. Himachal Road Transport

Corporation (“Bimla Devi”), it was observed that in a

claim petition filed under Section 166 of the Motor

Vehicles Act, 1988, the Tribunal has to determine the

amount of fair compensation to be granted in the event

an accident has taken place by reason of negligence of a

driver of a motor vehicle. A holistic view of the evidence

has to be taken into consideration by the Tribunal and

strict proof of an accident caused by a particular

vehicle in a particular manner need not be established

by the claimants. The claimants have to establish their

case on the touchstone of preponderance of

probabilities. The standard of proof beyond reasonable

doubt cannot be applied while considering the petition

seeking compensation on account of death or injury in a

road traffic accident. To the same effect is the

observation made by this Court in Dulcina Fernandes

vs. Joaquim Xavier Cruz, (2013) 10 SCC 646 which has

referred to the aforesaid judgment in Bimla Devi.”

(emphasis added)

24. Conversely, counsel for appellant/Insurance Company placed reliance

on Minu B. Mehta (supra) to state that in order to award compensation,

negligence needs to be proved by the claimant. Upholding the finding on

negligence, the Supreme Court observed that no damages would be payable

without proof of negligence on the part of driver of motor vehicle involved in

MAC.APP. 174/2021 Page 17/38

the accident. It was further observed that provisions of Chapter VIII of

Motor Vehicles Act, 1939 were merely procedural and had not altered the

substantive law. Relevant findings of the Court in that regard are extracted as

under:

“23. The Indian Law introduced provisions relating to

compulsory insurance in respect of third party

insurance by introducing Chapter VIII of the Act. These

provisions almost wholly adopted the provisions of the

English law. The relevant sections found in the three

English Acts Road Traffic Act, 1930, the Third Parties

(Rights against Insurance) Act, 1930 and the Road

Traffic Act, 1934 were incorporated in Chapter VIII.

Before a person can be made liable to pay

compensation for any injuries and damage which have

been caused by his action it is necessary that the person

damaged or injured should be able to establish that he

has some cause of action against the party responsible.

Causes of action may arise out of actions for wrongs

under the common law or for breaches of duties laid

down by statutes. In order to succeed in an action for

negligence the plaintiff must prove (1) that the

defendant had in the circumstances a duty to take care

and that duty was owed by him to the plaintiff, and that

(2) there was a breach of that duty and that as a result of

the breach damage was suffered by the plaintiff. The

master also becomes liable for the conduct of the

servant when the servant is proved to have acted

negligently in the course of his employment. Apart from

it in common law the master is not liable for as it is often

said that owner of a motor car does not become liable

because of his owning a motor car.

…

MAC.APP. 174/2021 Page 18/38

27. This plea ignores the basic requirements of the

owner's liability and the claimant's right to receive

compensation. The owner's liability arises out of his

failure to discharge a duty cast on him by law. The right

to receive compensation can only be against a person

who is bound to compensate due to the failure to

perform a legal obligation. If a person is not liable

legally he is under no duty to compensate anyone else.

The Claims Tribunal is a tribunal constituted by the

State Government for expeditious disposal of the motor

claims. The general law applicable is only common law

and the law of torts. If under the law a person becomes

legally liable then the person suffering the injuries is

entitled to be compensated and the Tribunal is

authorised to determine the amount of compensation

which appears to be just. The plea that the Claims

Tribunal is entitled to award compensation which

appears to be just when it is satisfied on proof of injury

to a third party arising out of the use of a vehicle on a

public place without proof of negligence if accepted

would lead to strange results.”

(emphasis added)

25. It may be relevant to note that the above observations made the Court

in Minu B. Mehta (supra) were overruled by the Supreme Court in Gujarat

SRTC v. Ramanbhai Prabhatbhai (1987) 3 SCC 234 to a limited extent

where the Court in paragraph 8 observed that, the observations made in

Minu B. Mehta (supra) were in the nature of obiter dicta, since there was no

necessity to go into the question of whether proof of negligence on the part

of the driver of motor vehicle was necessary or not to claim damages under

Chapter VIII of the Motor Vehicles Act, 1939, as negligence had already

MAC.APP. 174/2021 Page 19/38

been established by both High Court and Supreme Court in that case.

26. Further reliance was placed on Meena Variyal (supra), where the

Supreme Court reiterated the position taken in Minu B. Mehta (supra)

regarding the finding of negligence on the part of driver and owner of

offending vehicle when a claim petition has been filed under Section 166 of

Motor Vehicles Act, 1988. Relevant observations are extracted as under:

“26. Learned counsel for the respondent contended that

there was no obligation on the claimant to prove

negligence on the part of the driver. Learned counsel

relied on Gujarat SRTC v. Ramanbhai

Prabhatbhai [(1987) 3 SCC 234 : 1987 SCC (Cri) 482]

in support. In that decision, this Court clarified that the

observations in Minu B. Mehta case [(1977) 2 SCC 441

: (1977) 2 SCR 886] are in the nature of obiter dicta.

But, this Court only proceeded to notice that departures

had been made from the law of strict liability and the

Fatal Accidents Act by introduction of Chapter VII-A of

the 1939 Act and the introduction of Section 92-A

providing for compensation and the expansion of the

provision as to who could make a claim, noticing that

the application under Section 110-A of the Act had to be

made on behalf of or for the benefit of all the legal

representatives of the deceased. This Court has not

stated that on a claim based on negligence there is no

obligation to establish negligence. This Court was

dealing with no-fault liability and the departure made

from the Fatal Accidents Act and the theory of strict

liability in the scheme of the Act of 1939 as amended.

This Court did not have the occasion to construe a

provision like Section 163-A of the Act of 1988

providing for compensation without proof of negligence

MAC.APP. 174/2021 Page 20/38

in contradistinction to Section 166 of the Act. We may

notice that Minu B. Mehta case [(1977) 2 SCC 441 :

(1977) 2 SCR 886] was decided by three learned Judges

and the Gujarat SRTC case [(1987) 3 SCC 234 : 1987

SCC (Cri) 482] was decided only by two learned

Judges. An obiter dictum of this Court may be binding

only on the High Courts in the absence of a direct

pronouncement on that question elsewhere by this

Court. But as far as this Court is concerned, though not

binding, it does have clear persuasive authority. On a

careful understanding of the decision in Gujarat

SRTC [(1987) 3 SCC 234 : 1987 SCC (Cri) 482] we

cannot understand it as having held that in all claims

under the Act proof of negligence as the basis of a claim

is jettisoned by the scheme of the Act. In the context of

Sections 166 and 163-A of the Act of 1988, we are

persuaded to think that the so-called obiter

observations in Minu B. Mehta case [(1977) 2 SCC 441

: (1977) 2 SCR 886] govern a claim under Section 166

of the Act and they are inapplicable only when a claim is

made under Section 163-A of the Act. Obviously, it is for

the claimant to choose under which provision he should

approach the Tribunal and if he chooses to approach

the Tribunal under Section 166 of the Act, we cannot see

why the principle stated in Minu B. Mehta case [(1977)

2 SCC 441 : (1977) 2 SCR 886] should not apply to him.

We are, therefore, not in a position to accept the

argument of learned counsel for the respondents that

the observations in Minu B. Mehta case [(1977) 2 SCC

441 : (1977) 2 SCR 886] deserve to be ignored.”

(emphasis added)

27. Attention was drawn to this Court’s decision in Devki (supra) where

the Tribunal had arrived at a finding of negligence by relying upon certified

MAC.APP. 174/2021 Page 21/38

copies of record of criminal case such as FIR, mechanical inspection report,

post mortem report, which was appealed by the Insurance Company.

Allowing the appeal and remanding the matter back to the Tribunal, this

Court observed that in a claim petition filed under Section 166, the burden is

on claimants to prove negligence. Moreover, the witness whose statement

was recorded in the criminal proceedings, could have been summoned and

the matter was thereafter, remanded to accord an opportunity to claimants to

adduce further evidence. Relevant findings of this Court are extracted

hereinbelow for reference:

“5. It is well settled that in proceedings arising out of a

claim petition under Section 166 of MV Act based on

fault liability principle, a person cannot be held liable

unless he contravenes any of the duties imposed on him

by the common law or by the statute. In the case of a

motor accident it is imperative that the claimants show

by some evidence that the driver of the motor vehicle

had been negligent in relation to the said vehicle and

thereby had caused an accident resulting in bodily

injuries or death or damage to the property so as to be

held liable as the principal tort-feasor. The owner’s

liability arises out of his failure to discharge a duty cast

on him by the law, on the principle of vicarious liability.

Proof of negligence is necessary before the owner or the

insurance company may be held liable for payment of

compensation in a motor accident claim case brought

under Section 166 MV Act.

6. The law to above effect declared in Minu B Mehta v.

Balkrishna Ramchanra Nayan (1977) 2 SCC 441 was

reiterated by Supreme Court in Oriental Insurance

Company Ltd. v. Meena Variyal 2007 (5) SCC 428. It

appears there was some confusion raised with regard to

MAC.APP. 174/2021 Page 22/38

these principles on account of view taken in the case of

Gujarat State Road Transport Corporation v.

Ramanbhai Prabhatbhai (1987) 3 SCC 234. In Meena

Variyal (supra) the Supreme Court clarified as under :

“On a careful understanding of the decision in

Gujarat State Road Transport Corporation (supra)

we cannot understand it as having held that in all

claims under the Act proof of negligence as the

basis of a claim is jettisoned by the scheme of the

Act. In the context of Sections 166 and 163A of the

Act of 1988, we are persuaded to think that the so

called obiter observations in Minu B. Mehta's case

(supra) govern a claim under Section 166 of the

Act and they are inapplicable only when a claim is

made under Section 163A of the Act. Obviously, it

is for the claimant to choose under which provision

he should approach the Tribunal and if he chooses

to approach the Tribunal under Section 166 of the

Act, we cannot see why the principle stated in Minu

B. Mehta's case should not apply to him. We are,

therefore, not in a position to accept the argument

of learned counsel for the respondents that the

observations in Minu B. Mehta's case deserve to be

ignored.”

7. In Pushpa Rana (supra), the learned Single Judge of

this Court holding the case of the claimant as duly

proved on the basis of the certified copies of the record

of the corresponding criminal case, while dealing with

identical contention took note of the judgment in Meena

Variyal (supra) but proceeded to observe thus:

“13. The last contention of the appellant insurance

company is that the respondents claimants should

have proved negligence on the part of the driver

and in this regard the counsel has placed reliance

on the Judgment of the Hon'ble Apex Court in

Oriental Insurance Co. Ltd. v. Meena Variyal

MAC.APP. 174/2021 Page 23/38

(supra). On perusal of the award of the Tribunal, it

becomes clear that the wife of the deceased had

produced (i) certified copy of the criminal record

of criminal case in FIR No. 955/2004, pertaining

to involvement of the offending vehicle, (ii)

criminal record showing completion of

investigation of police and issue of charge sheet

under Section 279/304-A, IPC against the driver;

(iii) certified copy of FIR, wherein criminal case

against the driver was lodged; and (iv) recovery

memo and mechanical inspection report of

offending vehicle and vehicle of the deceased.

These documents are sufficient proofs to reach the

conclusion that the driver was negligent.

Proceedings under Motor Vehicles Act are not

akin to proceedings in a civil suit and hence strict

rules of evidence are not required to be followed in

this regard. Hence, this contention of the counsel

for the appellant also falls face down. There is

ample evidence on record to prove negligence on

the part of the driver.”

8. In the facts and circumstances, this Court finds it

difficult to follow the view taken in Pushpa Rana

(supra). Since the law declared by the Supreme Court

in Meena Variyal (supra) is binding, there is no escape

from the conclusion that it is the burden of the claimants

in a petition under section 166 of MV Act to prove

negligence. Should they find it difficult to prove

evidence with regard to negligence, the option to have

resort to no- fault liability on the structured formula

under Section 163A of MV Act is always available to

seek just compensation. The case of Bimla Devi

(supra) cannot be an illustration to hold otherwise

inasmuch as it is clear from the narration of facts noted

therein that an eye witness was available and the

conclusion on facts had been reached on the basis of his

MAC.APP. 174/2021 Page 24/38

testimony.

9. It is clear from the perusal of the evidence adduced

before the Tribunal, and the view taken thereupon, that

the claimants did not examine any witness, whether in

the nature of eye witness of the actual occurrence or of

the circumstances attending upon the events leading to

the death. The version of the conductor Manoj Kumar

in the FIR (Ex.PW1/1) is in the nature of his statement

to the police under Section 161 of the Code of Criminal

Procedure, 1973 (Cr.P.C.). It is trite that a statement

whether made under Section 154 or Section 161 Cr.P.C.

cannot be treated as evidence in the strict sense of the

term. The said witness, it is conceded, has been

available all along and could have been summoned to

prove the circumstances. It may be that there is no eye

witness available to the actual occurrences wherein the

deceased went to sleep on the ground during the night

near the Kela Devi fair and on next morning was found

having been crushed by the offending bus. But then,

the circumstances in which the deceased had retired for

the night, and the circumstances in which his dead body

was found crushed under the wheels of the said bus at

least could have been brought home through evidence

which is available. In absence of the witnesses of such

circumstances, the principle of res ipsa locutor also

cannot be invoked on the available material brought

before the Tribunal.

10. Faced with above situation, the learned counsel for

the claimants fairly conceded that the conclusions on

facts reached by the Tribunal cannot be denied. He

submitted that since the conductor on whose statement

the FIR had been registered has been available, in

order not to deny just compensation to the next of kin of

the deceased, justice demands that fresh opportunity be

given to them to bring the said witness before the

Tribunal. The counsel submitted that while the appeal

MAC.APP. 174/2021 Page 25/38

of the insurance company may be allowed, the

claimants’ case may be remitted to the Tribunal for

further inquiry. The counsel for the appellant

insurance company submitted that he has nothing to say

on this prayer.”

(emphasis added)

28. In order to further emphasize the contention that a claim petition filed

under Section 166 requires the claimant to prove negligence, reliance was

placed on Surender Kumar Arora (supra) by counsel for

appellant/Insurance Company. Relevant paragraph is extracted as under:

“6. The learned counsel Shri S.L. Gupta, appearing for

the respondent Insurance Company would submit that

since the petition that was filed by the parents of the

deceased person was under Section 166 of the Act, the

entire responsibility of proving the act of rash and

negligent driving by the driver of the vehicle was on the

claimants and since that was not done by adducing

cogent evidence, the courts below were justified in

rejecting the claim petition filed by the appellant

claimants under Section 166 of the Act. In aid of his

submission, the learned counsel has drawn our

attention to the observations made by this Court in

Oriental Insurance Co. Ltd. v. Meena Variyal.”

29. The impugned award dated 26

th

November 2020 was passed by the

Tribunal post-remand by this Court by order dated 9

th

May 2016. Necessity

of remand was explained by the Court and the relevant observations are

extracted as under:

“2. The tribunal has returned a finding upholding the case

that the death had occurred due to involvement of the bus and

MAC.APP. 174/2021 Page 26/38

the negligent driving thereof by its driver, primarily on the

statement of the first claimant (first respondent) who

appeared as a witness (PW-1) tendering her affidavit

(PW1/1) and a copy of the record of investigation relating to

the first information report (FIR) no.308/2010 of PS R.K.

Puram.

3. The insurance company which has been fastened with the

liability to pay the compensation awarded by the tribunal by

the judgment dated 31.10.2012, raises the prime issue of

there being no evidence adduced about the involvement of the

bus and negligence on the part of its driver. It may also be

added that the insurer further questions the computation of

compensation as well.

4. PW-1, the solitary witness examined with regard to the

involvement of the bus and negligence was admittedly not an

eye witness. On being asked, the counsel for the claimants

submitted that he may now be given an opportunity to prove

the necessary facts by proper evidence, in as much as the eye

witness was available, he being the person travelling on the

motorcycle with the deceased at the same point of time.

5. With this submission, the counsel fairly concedes that the

impugned judgment may be set aside and the matter remitted

to the tribunal.

6. In the above facts and circumstances, the impugned

judgment is set aside. The matter is remitted to the tribunal

for further inquiry in accordance with law. In the further

inquiry, the claimants shall be entitled to entitled to lead

further evidence. Needless to add, the parties which contest

will be entitled to cross-examine the witnesses to be further

examined by the claimants and also lead evidence in rebuttal.

After giving such opportunity, the tribunal shall pass a fresh

judgment with an open mind without feeling bound by the

view taken earlier. The parties shall appear before the

tribunal on 07.06.2016.”

(emphasis added)

MAC.APP. 174/2021 Page 27/38

30. Impugned award notes that the parties did not appear before the

Tribunal on 7

th

June 2016, thereafter, the claim petition was dismissed for

want of prosecution and then set aside by an application under Order IX Rule

9 of Code of Civil Procedure, 1908 (‘CPC’) on 5

th

March 2020. At that stage,

counsel for claimants, stated before the Tribunal that the eyewitness was not

available and his evidence be closed, which was thereafter, closed and matter

was fixed for arguments.

31. Counsel for claimants, instead relied upon certified copies of criminal

proceedings relating to the accident, where the eyewitness/Pawan Kumar

had been examined and cross examined. On the strength of that record,

counsel for claimants, argued that the accident had occurred due to rash and

negligent driving of the offending vehicle/bus. As narrated above, deceased

was the pillion rider of the bike driven by Pawan Kumar and the collision

took place with the bus driven by respondent no.5 and owned by respondent

no.6. PCR came to the spot and found the deceased under the bus, after

which he was shifted to Batra Hospital, where he succumbed to his injuries

on the following day.

32. Counsel for appellant/Insurance Company, once again raised the issue

before the Tribunal that the eyewitness, who was a colleague of the deceased

had not been examined.

33. Tribunal noted that opportunities were given to examine the

eyewitness, however, he was not available. Benefit of examination before

the Criminal Court was available to the Tribunal which had been relied upon.

Charge-sheet had been filed against the bus driver. Further, SI Janak Raj, IO

MAC.APP. 174/2021 Page 28/38

had also been examined in the criminal proceedings, wherein, he deposed

that he found the offending vehicle/bus and the bike in accidental condition

and a person lying under the centre part of the offending vehicle/bus

lengthwise.

34. The issue raised by counsel for appellant/Insurance Company, that the

bus tyre did not have blood stains, was rightly considered by the Tribunal as

not being relevant considering that the IO had deposed that the deceased was

found under the bus in the centre part. Post mortem report further stated that

the cause of death was due to cranio cerebral damages as a result of crush

injury. Accordingly, in the opinion of this Court, the Tribunal was not amiss

in deciding the issue of negligence in favour of claimants.

35. In this regard, it must be noted that the assessment done by any

Tribunal is effectively based on three fundamental principles – first, the

procedure before the Tribunal is in nature of an inquiry and not akin to an

adversarial lis, therefore, not bound by strict rules of evidence; second,

depending on the facts of the accident itself, applying the doctrine of res ipsa

loquitur would shift the burden on the respondent/defendant to prove that

they had taken full care to avoid unforeseeable harm and; third, the ultimate

assessment has to be on the basis of preponderance of probabilities. These

principles have been reiterated time and again by the Supreme Court in

various judgments.

36. It may be true that an eyewitness is not available in every case.

Undoubtedly, the Tribunal has powers under Section 169 of Motor Vehicles

Act, 1988 (‘MV Act’) to compel the presence of any person who has special

MAC.APP. 174/2021 Page 29/38

knowledge of the accident. However, the Supreme Court in Anita Sharma v.

New India Assurance Co. Ltd., (2021) 1 SCC 171 has stated that the

non-examination of best eyewitnesses, as may happen in a criminal trial

cannot be a reason for the Tribunal to not go ahead and determine the issue

of negligence based on material placed before it.

37. This is because the procedure before the Tribunal is not bound by

rules applicable to adversarial lis, but is based on an assessment of facts

placed before them on the issue of negligence, on the touchstone of

preponderance of probabilities. It also does not mean, as the Supreme Court

stated in Meena Variyal (supra), that the Tribunal will jettison all

fundamental principles of law, but that the essential foundational facts will

have to be established by the claimant, on the basis of which the Tribunal, if

convinced, can draw an inference either on bare facts or on application of the

doctrine of res ipsa loquitur and the burden will then shift on

respondent/defendant to prove that they took full care to avoid any

foreseeable consequences.

38. In this process of inquiry and applying preponderance of probabilities,

the Supreme Court has further reiterated that reliance on criminal

proceedings, in particular FIR and charge-sheet would tilt the balance in

favour of claimants, particularly, when no protest has been filed against the

charge-sheet. Moreover, testimonies recorded during criminal proceedings,

if any, eyewitness or otherwise, have testified against the driver of offending

vehicle, as regards negligence.

39. It would be apposite to refer to decisions of the Supreme Court in this

MAC.APP. 174/2021 Page 30/38

regard, which may be relevant.

40. The Supreme Court in Ranjeet v. Abdul Kayam Neb, 2025 SCC

OnLine SC 497 has recently reiterated its position on the said issue, where it

stated as under:

“4. It is settled in law that once a charge sheet has been filed

and the driver has been held negligent, no further evidence is

required to prove that the bus was being negligently driven

by the bus driver. Even if the eyewitnesses are not examined,

that will not be fatal to prove the death of the deceased due to

negligence of the bus driver.

5. In view of the aforesaid facts, we are of the opinion that the

Tribunal and the High Court both manifestly erred in law in

refusing to grant any compensation to the claimants.”

(emphasis added)

41. In Meera Bai v. ICICI Lombard General Insurance Company Ltd.

& Anr. 2025:INSC:600, the Supreme Court has observed that in cases where

the eyewitness was not examined, reliance on FIR and charge-sheet was

enough for the finding of negligence to be established. In this regard, the

relevant paragraphs are as under:

“2. The claimants before the Tribunal have filed an appeal

from the order of the High Court which allowed the appeal of

the insurance company and dismissed the claim petition for

reason of no eyewitness having been examined to prove the

rash and negligent driving.

3. On facts, it needs to be stated that the accident occurred on

29.01.2015 when the deceased was travelling pillion in a

motorbike driven and owned by the second respondent. The

FIR was lodged against the owner driver of the vehicle for

the offence of rash and negligent driving. A charge sheet was

filed against the owner driver. The owner driver filed a

MAC.APP. 174/2021 Page 31/38

written statement before the Tribunal denying the rash and

negligent driving on his part, however he did not mount the

box to depose that it was not due to his fault that the accident

occurred.

4. As far as examining the eyewitness, such a witness will not

be available in all cases. The FIR having been lodged and the

charge sheet filed against the owner driver of the offending

vehicle, we are of the opinion that there could be no finding

that negligence was not established.”

(emphasis added)

42. In Srikrishna Kanta Singh v. Oriental Insurance Co. Ltd., 2025 SCC

OnLine SC 636, the Supreme Court observed as under:

“8. The accident occurred on 03.11.1999 upon which a First

Information Report was registered produced as Annexure

P-4. Annexure P-4 clearly indicates that the trailer was

found to have been driven rashly and negligently; the owner

of which was the 1

st

respondent before the Tribunal and the

insurer, the 3

rd

respondent. The charge sheet has also been

filed which is produced as Annexure P-9. After investigation,

the charge sheet clearly found that the accident was caused

due to the negligence of the driver of the trailer and arrayed

him as the accused. PW 1 who was riding pillion also spoke

of the rash and negligent driving of the trailer.

…

11. In a motor accident claim, there is no adversarial

litigation and it is the preponderance of probabilities which

reign supreme in adjudication of the tortious liability flowing

from it, as has been held in Sunita v. Rajasthan State Road

Transport Corporation. Dulcina Fernandes v. Joaquim

Xavier Cruz is a case in which the rider, who also carried a

pillion, died in an accident involving a pick-up van. There

was a contention taken that the claimants who were the legal

heirs of the deceased had not cared to examine the pillion

rider and hence the version of the respondent in the written

MAC.APP. 174/2021 Page 32/38

statement that the moving scooter had hit the parked pick-up

van, was to be accepted. It was found, as in the present case,

that the Police had charge-sheeted the driver of the pickup

van which prima facie showed negligence of the

charge-sheeted accused. Similarly in the present case also,

the Police after investigation, charge-sheeted the driver of

the trailer finding clear negligence on him, which led to the

accident. This has not been controverted by the respondents

before the Tribunal by any valid evidence nor even a

pleading. In fact, the Tribunal, on a mere imaginative

surmise, found that since the scooter collided with the

tail-end of the trailer, it can be presumed that the driver of

the scooter was not cautious, which in any event is not a

finding of negligence.

12. Finding that the driver was not cautious is one thing and

finding negligence is quite another thing. Prima facie, we are

satisfied that the negligence was on the trailer driver as

discernible from the evidence recorded before the Tribunal;

standard of proof required being preponderance of

probability as has been reiterated in Mangla Ram v. Oriental

Insurance Company Limited”

(emphasis added)

43. As discussed in paragraph 20 above, on one hand, there is a

reiteration by the Supreme Court in various judgments, regarding the nature

of proceedings before the Tribunal and the test of preponderance of

probabilities to consider proof of negligence. On the other hand, the decision

of Supreme Court in Meena Variyal (supra) is often cited by counsels for

Insurance Companies seeking to state that such reliance cannot be made.

However, one must carefully examine the decision in Meena Variyal

(supra).

44. Respondents/claimants in Meena Variyal (supra) had sought to

MAC.APP. 174/2021 Page 33/38

submit that there was no obligation on claimant to prove negligence, relying

upon the decision Gujarat SRTC (supra) where the Court had clarified that

observations in Minu B. Mehta (supra) were one in the nature of obiter

dicta. Supreme Court in Meena Variyal (supra) clarified that the Court did

not state that in a claim based on negligence, there is no obligation to

establish negligence. In Minu B. Mehta (supra), the Supreme Court was

dealing with no fault liability and a departure from Fatal Accidents Act, 1855

leading to a theory of strict liability. The Court did not have an occasion to

construe a provision like 163-A of MV Act, which provides for

compensation without proof of negligence in contradistinction to Section

166 of the MV Act. Moreover, Minu B. Mehta (supra) was decided by a

three Judge Bench while Gujarat SRTC (supra) was decided by a two Judge

Bench.

45. Therefore, the Supreme Court in Meena Variyal (supra) stated that

the obiter dicta in Minu B. Mehta (supra), though, not binding, had clear

persuasive authority. Minu B. Mehta (supra) merely said that proof of

negligence was necessary, but the Supreme Court in Meena Variyal (supra)

clarified that these obiter observations governed a claim under Section 166

of the MV Act and were inapplicable when claim was made under Section

163-A of the Act.

46. This clarification by the Supreme Court merely reiterates a

fundamental position under law, that, in a claim for liability based on

negligence, claimant does have to prove negligence. However, what is the

nature of that onus on the claimant needs to be understood. The claimant,

MAC.APP. 174/2021 Page 34/38

who may be injured or a legal representative of the deceased, resulting from

an accident, can at best provide facts of the accident which are available to

them, by themselves or through police records to a Tribunal. This would

include aspects of the nature of collision, vehicles involved, location of the

vehicles, situs of the accident and in some cases involve an eyewitness

testimony, as well. Beyond that, from this conspectus of facts, can an

inference of negligence be drawn out. Onus on the claimant cannot be more

than this, considering that the claimant would not have access to the

information, which is otherwise available to respondent/driver, as to the

conduct of respondent/driver while driving the offending vehicle at the time

when the collision took place or the events leading to the collision.

47. At best, that can only be achieved by the claimant in

cross-examination of the driver of offending vehicle, which as often seen in

practice, do not appear before Tribunals, the liability being borne by the

Insurance Company. Having discharged the onus to this extent, the Supreme

Court’s observation in Meena Variyal (supra) having endorsed the obiter

dicta of Minu B. Mehta (supra), for a claim under section 166 of the MV

Act, does not mean that this onus is jettisoned. But it also does not mean that

there is something greater than this onus on the claimants to discharge for

proving a claim.

48. It has to be emphasized for this reason and considering the nature of

accidents and collisions, jurisprudential principles of res ipsa loquitur and

preponderance of probability have to be applied. Else, the burden of proof on

claimant would be as good as that in a civil claim or, in fact, closer to beyond

MAC.APP. 174/2021 Page 35/38

reasonable doubt. Marshalling of all available facts relating to the accident,

undoubtedly has to be done and the Tribunal must, in its process of inquiry,

attempt to achieve the same.

49. Therefore, the Court is of the opinion that, in this process, the Tribunal

can rely upon testimonies made in a Criminal Proceeding, which has led to

filing of a charge sheet, which has not been set aside or protested, to be

persuasive data to apply the test of preponderance of probabilities.

50. Which is why the line of reasoning provided by this Court in Pushpa

Rana (supra), as noted above in paragraph 18, has been repeatedly

endorsed, till, as recently as in Mathew Alexander (supra), which relied

upon a line of judgments upholding the principle of preponderance of

probabilities.

51. Therefore, the Court does not find anything amiss in the impugned

award passed by the Tribunal, post the remand, having relied upon the

testimony of eyewitness before the Criminal Court, and the factum of FIR

followed by a charge sheet, thereby, holding respondent no.5/driver of

offending vehicle as negligent. To this extent, plea of the

appellant/Insurance Company is not tenable.

52. As regards the quantum of compensation, counsel for

appellant/Insurance Company, has argued that the annual income of

deceased was fixed by the Tribunal at Rs.4,51,400/-, by including income of

Rs.30,000/- earned as commission income from working as an Insurance

Agent with LIC, beside his salaried income, which should not have been

included.

MAC.APP. 174/2021 Page 36/38

53. Assessment of income of deceased should be based on what was

received by the deceased at the time of the accident, be it, the salaried

income, any additional amount earned or otherwise, which, in this case, is

the commission earned from LIC. There is no cogent reason for such

earnings which he was receiving as commission to be excluded.

54. While calculating dependency, the Courts have to compute an amount

using a multiplier, so that a certain annuity can be purchased, which would

lead to the family income being sustained. Considering that the commission

earned from LIC over a reasonable period of years has been supported by

documents issued by Chief Manager, LIC Nehru Place, New Delhi, there is

no reason why it would have been discontinued or excluded, even though the

amounts may be not be uniform over the years. The rationale behind

calculating income is to use the benchmark at the time of accident and what

the family would require for loss of dependency.

55. In this case, in paragraph 16 of the impugned award, the Tribunal has

assessed the issue of commission earned from LIC, by considering the

average commission earned in the previous 3 financial years being,

2011-2012, 2010-2011, (considering that the accident happened in

September 2010) and 2009-2010. Considering that the commission earned

during 2011-2012 would have been accrued commission, it was less than the

commission accrued during financial years 2009-2010 and 2010-2011. The

Tribunal considered an average of the 3 years to be around Rs.30,000/-.

Therefore, the plea raised by appellant/insurance company, in this regard, is

also rejected and the income assessed for the purposes of dependency is

MAC.APP. 174/2021 Page 37/38

sustained.

56. Another issue argued by appellant/Insurance Company is the

reduction of 1/4

th

towards personal and living expenses, having considered

four dependents, including, the father of deceased. To this effect, it is noted

that the deceased was 35 years of age at the time of his death and employed

as a Senior Manager (accounts and finance) in a private company, Sinewave

Technologies, earning a monthly salary of Rs.38,500/-.

57. Respondent no.1/wife of deceased, in her testimony as PW-1, stated

herself to be 40 years of age, her child to be 3 years of age, and parents of

deceased as 63 and 61 years of age. Considering the factual matrix, the

Tribunal was correct in assessing the dependency of parents as well,

considering that they were both above 60 years of age. Therefore, reduction

of 1/4

th

towards personal and living expenses is considered appropriate. In

her cross-examination, respondent no.1/wife of deceased, PW-1, was not

confronted on these aspects or given any suggestion otherwise on this issue,

therefore, her testimony would withstand and will be sustained.

58. The residual issue being award of interest at the rate of 7.5% per

annum, along with 12% penal interest shall not be disturbed, as the

assessment made by the Tribunal was on the basis of fixed deposit rates

prevalent at the time of the accident. Further, no material has been provided

by appellant/Insurance Company to displace the finding of the Tribunal in

this regard. Therefore, the interest rates awarded by the Tribunal shall be

sustained.

59. Accordingly, the appeal stands dismissed.

MAC.APP. 174/2021 Page 38/38

60. This Court vide order dated 20

th

September 2021 noted that at the time

of the first appeal, awarded amount was deposited with UCO Bank, Delhi

High Court and 50% was directed to be released to claimants and balance

was kept in fixed deposit. It was also stated by the counsel for

appellant/Insurance Company, that the balance amount was still lying in

UCO Bank, Delhi High Court. Remaining balance amount shall continue to

be disbursed as per the scheme of Tribunal.

61. By way of the first award passed on 31

st

October 2012, the Tribunal

had awarded Rs.62,36,940/- along with interest at 7.5% per annum, which

was enhanced to Rs.63,81,940/- along with interest at 7.5% per annum.

Considering that the appeal has been dismissed, appellant/Insurance

Company is directed to deposit Rs. 1,45,000/-, along with accrued interest,

with the Registrar General of this Court within 4 weeks. This amount shall

be disbursed to the claimants as per the scheme of the Tribunal.

62. Statutory deposit, if any, be refunded to appellant/Insurance

Company, only if the order of deposit has been complied with.

63. Pending applications are rendered infructuous.

64. Judgment be uploaded on the website of this Court.

ANISH DAYAL

(JUDGE)

APRIL 17, 2026/SM/sp