Delhi High Court
The Oriental Insurance Co Ltd vs Sunita Singh & Ors on 17 April, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 6th February 2026
Pronounced on : 17th April 2026
Uploaded on : 18th 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.
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Digitally Signed
By:MANISH KUMAR
Signing Date:18.04.2026
13:14:13
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 24th 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.
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By:MANISH KUMAR
Signing Date:18.04.2026
13:14:13
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
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By:MANISH KUMAR
Signing Date:18.04.2026
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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,
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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
1/4th 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
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By:MANISH KUMAR
Signing Date:18.04.2026
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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.
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By:MANISH KUMAR
Signing Date:18.04.2026
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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 Signature Not Verified MAC.APP. 174/2021 Page 7/38 Digitally Signed By:MANISH KUMAR Signing Date:18.04.2026 13:14:13
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:
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Digitally Signed
By:MANISH KUMAR
Signing Date:18.04.2026
13:14:13
“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:
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By:MANISH KUMAR
Signing Date:18.04.2026
13:14:13
“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
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By:MANISH KUMAR
Signing Date:18.04.2026
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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
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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 toSignature Not Verified
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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’Signature Not Verified
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By:MANISH KUMAR
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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 toSignature Not Verified
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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, whereinSignature Not Verified
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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
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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.
…
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By:MANISH KUMAR
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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
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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
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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
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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
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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
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(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
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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
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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 andSignature Not Verified
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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)
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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
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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
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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
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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 aSignature Not Verified
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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
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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
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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,
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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
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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 probabilit ies.
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.
Signature Not Verified
MAC.APP. 174/2021 Page 35/38
Digitally Signed
By:MANISH KUMAR
Signing Date:18.04.2026
13:14:13
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
Signature Not Verified
MAC.APP. 174/2021 Page 36/38
Digitally Signed
By:MANISH KUMAR
Signing Date:18.04.2026
13:14:13
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 1/4th 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.
Signature Not Verified
MAC.APP. 174/2021 Page 37/38
Digitally Signed
By:MANISH KUMAR
Signing Date:18.04.2026
13:14:13
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
Signature Not Verified
MAC.APP. 174/2021 Page 38/38
Digitally Signed
By:MANISH KUMAR
Signing Date:18.04.2026
13:14:13
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