The Oriental Insurance Co Ltd v. Sunita Singh & Ors.

(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 ofrash and negligent drivingof 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 25th February 2011 along with the

Medico-Legal Certificate (‘MLC’) ofdeceased 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

(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.

(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 determinethat the driver of offending vehicle was negligent. Relevant observations of this Court are extracted as under: MAC.APP. 174/2021 Page 9/38

19. Further reliance wasplaced on Pooja Bhatia (supra), wherethis Court upheld the Tribunal’s findingon negligence by perusingthrough 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 13th 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 theAct 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.”

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 wherethere 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:

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 holdingthat the absence oftestimony ofpillion 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:

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:

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 ofproof 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:

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 proofof negligence on thepart ofdriver ofmotor 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 oftheCourt in that regard are extracted as under:

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 natureof obiter dicta, sincethere 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 thatdepartures 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 ofnegligence 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] wasdecided 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 ofnegligence 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 theAct and they are inapplicableonlywhen 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 Tribunalunder 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.”

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:

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:

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 thebasis 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 underSection 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 hehas nothing to say on this prayer.”

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/InsuranceCompany. Relevant paragraph is extracted as under:

29. The impugned award dated 26th November 2020 was passed by the Tribunal post-remand by this Court by order dated 9th 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 involvementof thebusand 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 evidenceadduced about the involvementof 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 claimantsand 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.” MAC.APP. 174/2021 Page 27/38

30. Impugned award notes that the parties did not appear before the Tribunal on 7th June 2016, thereafter, the claim petition was dismissed for want ofprosecution and then set asideby an application under Order IX Rule 9 of Codeof Civil Procedure, 1908 (‘CPC’)on 5th March 2020. At that stage, counsel for claimants, stated beforethe Tribunalthat the eyewitness was not availableand 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 Tribunalthat the eyewitness, who was a colleague ofthedeceased had not been examined.

33. Tribunal noted that opportunities were given to examine the eyewitness, however, he was not available. Benefit of examination before theCriminalCourt was availabletothe 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 thedeceased was found under the bus in the centrepart. 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 ofthe accident itself, applyingthedoctrineof 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, theSupreme 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 applyingpreponderance ofprobabilities, 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, havetestified 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 thedriver 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 willnotbe fatal to prove the death of thedeceased due to negligence of the bus driver.

5. In view of theaforesaid facts, weare of the opinion that the Tribunal and the High Court both manifestly erred in law in refusing to grant any compensation to the claimants.”

41. In Meera Bai v. ICICI Lombard General Insurance Company Ltd. & Anr. 2025:INSC:600, theSupreme 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:

42. In Srikrishna Kanta Singh v. Oriental Insurance Co. Ltd., 2025 SCC OnLine SC 636, the Supreme Court observed as under:

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 proofof 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 dealingwith 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 GujaratSRTC (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 ofprobability haveto beapplied. Else, the burden ofproofon 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, theCourt is ofthe 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 ofthe 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 havebeen 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 1/4th 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. MAC.APP. 174/2021 Page 38/38

60. This Court videorder dated 20th September 2021 noted that at thetime 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 31st 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