$~7
*	IN  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI
%						Date of decision: 07th January 2026
+ 	MAC.APP. 273/2013 & 	CM.APPL. 1929/2024
	THE NEW INDIA ASSURANCE CO. LTD.	.....Appellant
				Through:	Ms. Shruti Jain, Advocate 

				versus

	TANUJ SEHRAWAT & ORS.				.....Respondent
				Through:	None 

	CORAM:
	HON'BLE MR. JUSTICE ANISH DAYAL
				JUDGMENT

ANISH DAYAL, J (Oral)
1. This appeal has been filed under Section 173 of the Motor Vehicles Act (“MV Act”) assailing award dated 15th January 2013 passed by the Judge, Motor Accident Claim Tribunal (“MACT”), Dwarka Courts, New Delhi in MACT No.144/12/10 titled as “Shri Tanuj Sehrawat v. Shri Jas Karan Singh & Others”. Vide the said judgment a total compensation of Rs.1,51,525/- along with interest @7.5% per annum from date of filing of the claim was awarded to respondent no.1. 
2. While injured Tanuj Sehrawat has been arrayed as respondent no.1, Jas Karan Singh, driver of vehicle is respondent no.2, Smt. Anshu, owner of vehicle is respondent no.3, Dinesh Kumar Monga, Superdar is respondent no.4 and Indian Railways has been arrayed as respondent no.5 in the instant appeal.  
3. As noted in order dated 26th November 2025 of the Joint Registrar, substituted service of respondent no.5 has been accomplished and citations in that regard have been placed on record.
4. By order dated 10th February 2020, this appeal was admitted on the limited issue whether the appellant was entitled to recovery rights against Railways on the basis of contributory negligence.  
5. Since Railways was not a party in the original appeal, by order dated 25th July 2022, the Court directed for impleadment of Railways as a respondent and thereafter Railways has been arrayed as respondent no.5.  
6. Considering that process of substituted service stands completed but no one has appeared on behalf of respondent no.5/Indian Railways, the matter is being heard ex parte. 

Factual Background 
7. The matter pertains to an accident that took place on 8th March 2008 when respondent no.1/ Tanuj Sehrawat was traveling in a tourist bus No. RJ-13-PA-0052 from Hissar to Delhi and when the said bus reached near Brahi-Bahadurgarh Railway Crossing, at about 8:00 AM, the railway crossing gate was apparently left open by mistake of the gateman.  At that time, Awadh Assam Express No.5610 that was coming from Rohtak side, struck the tourist bus resulting grievous injuries to the respondent no.l/ Tanuj Sehrawat.  
8. It is stated that the respondent no.1/claimant suffered fracture of mandible (multiple) (comminuted), fracture of maxilla, fracture of orbit floor, fracture of scapular, loss of lower molar teeth (left side), bruises and muscular spasms on back and abdomen, 2 clear cut lacerated wounds below chin and below mandible left side, clear, cut lacerated wound on post aspect of right forearm just below the elbow.
9. It is stated that firstly the respondent no.1/claimant was taken to General Hospital, Bahadurgarh. Thereafter, he was referred to PGI Rohtak and thereafter to M.A. Medical College and Hospital, Agroha and finally to Sir Ganga Ram Hospital, Rajender Nagar, New Delhi for treatment.
10. Claimant/respondent no.1 stated that an FIR No.32/2008 under Sections 279, 337, 338, 304A and 427 of the Indian Penal Code 1860 (IPC) and under Section 175 of The Railways Act, 1989 was registered at Police Station Rohtak regarding accident in question.
11. It is stated that the respondent no.1/claimant was 24 years of age and was a final year student of MBBS at the time of accident. Respondent no.1/claimant has stated that he had spent Rs.1,50,000/- on his treatment from 08th March 2008 to 12th March 2008. It is stated that due to this accident the claimant lost one academic year and was on liquid diet for two months which resulted in severe weakness. Respondent no.1/claimant claims that he has spent Rs. 50,000/- on conveyance and Rs. 20,000/- on special diet. Respondent no.1/claimant has stated that the accident was caused due to rash and negligent driving of the driver Jas Karan Singh/respondent no. 2 [respondent no. 1 in MACT No.144/12/10]. 
12. The Insurance Company, appellant herein, was arrayed as respondent no.4 before the Tribunal, who filed the written statement taking an objection that it had to be proved that the alleged offending vehicle bus was having a fitness certificate and valid permit to ply said vehicle in Delhi and till that is proved, no liability can be fastened upon appellant/Insurance Company.  The other objection raised by the appellant/Insurance Company was that on the date of accident, driver of the offending vehicle was not holding a valid and effective driving license. 

Analysis
13. The MACT, in paragraph 20 the impugned judgment, noted the deposition of respondent no.1/claimant who categorically denied that the accident had occurred due to any negligence on the part of the Railways. He also denied having received any claim from the Railways Tribunal or having knowledge of any inquiry report suggesting negligence of the Railway Guard. For ease of reference the said paragraph is extracted as under: 
“20. In cross examination, claimant deposed that he has not received any claim from the Railways Tribunal. He denied any knowledge regarding inquiry conducted by Railways Tribunal as per which it was held that the accident took place due to negligence of Railways Guard. He denied a suggestion that the accident took place due to negligence of employees of railways. He deposed that he had passed final year of MBBS Exam in the same year in which he had met with the accident and he has not placed on record any documentary evidence to show that he had to remain absent for three months from his regular classes due to accidental injuries.”
           (emphasis added)
  
14. Further in paragraph 35 of the impugned judgment, Tribunal noted that basis the FIR which was registered, ultimately culminating into a charge sheet, charges were framed against driver of vehicle, respondent no.1/Jas Karan Singh [respondent no.2 herein] and Sube Singh, Gateman of Railways under Section 175 of the Railways Act, there would be an issue of contributory negligence of Sube Singh, Gateman of Railways.  Since the respondent no.1 had not taken defence of contributory negligence, therefore, no order had been passed against them.
15. Counsel for appellant/Insurance Company when confronted with this, could not cite any documentation placed on record to state that they had taken plea of contributory negligence of Railways which is now sought to be canvassed in this appeal. 
16. In these circumstances, no evidence having been placed on record or a plea being taken of contributory negligence before the MACT Court, this Court does not find any infirmity in order passed by the Court.  
17. Before adverting to the legal position, it may be noted that contributory negligence, in tort law, contemplates a situation where a person’s own negligence has materially contributed to the harm suffered, thereby warranting apportionment of liability to the extent of such negligence. The Supreme Court in Municipal Corporation of Greater Bombay v. Laxman Iyer, 2003 (8) SCC 731, explained the term ‘negligence’, ‘composite negligence’ and ‘contributory negligence’. For ease of reference relevant paragraph is extracted as under: 
“6. The plea which was stressed strenuously related to alleged contributory negligence. Though there is no statutory definition, in common parlance “negligence” is categorised as either composite or contributory. It is first necessary to find out what is a negligent act. Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations, who ordinarily by reason of conduct of human affairs would do or be obligated to, or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly correlative. Negligence means either subjectively a careless state of mind, or objectively careless conduct. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act. Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of the other's negligence. Whichever party could have avoided the consequence of the other's negligence would be liable for the accident. If a person's negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. (See Charlesworth on Negligence, 3rd Edn., para 328.) It is now well settled that in the case of contributory negligence, courts have the power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damage is reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But in a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise. Where a person is injured without any negligence on his part but as a result of the combined effect of the negligence of two other persons, it is not a case of contributory negligence in that sense. It is a case of what has been styled by Pollock as injury by composite negligence. (See Pollock on Torts, 15th Edn., p. 361.)”
         (emphasis added)

18. In motor accident claim proceedings, the Tribunal is required to assess negligence on the touchstone of the preponderance of probabilities, adopting a holistic and pragmatic view of the evidence rather than insisting upon strict proof as in a criminal trial. The Supreme Court in Bimla Devi v. Himachal RTC, (2009) 13 SCC 530, stated that strict proof of the manner of the accident is seldom possible and that once the claimants place material such as the FIR, site plan or eyewitness account, the Tribunal must accept the occurrence on a ‘preponderance of probabilities’. Relevant paragraphs are extracted as under: 
“11. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in Section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimant's predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a post-mortem report vis-à-vis the averments made in a claim petition.
………
15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties.”
          (emphasis added)

19. Similarly, in Kusum Lata v. Satbir, (2011) 3 SCC 646, the Supreme Court cautioned that the Tribunal and the High Court must not discard otherwise reliable evidence on hyper-technical grounds, such as non-mention of an eyewitness in the FIR, given the traumatic circumstances in which such accidents occur. The Court held that MACT proceedings do not require the strict proof applicable in criminal trials and that the evidence must be appreciated in a realistic and humane manner. Relevant observations are as follows:
“8. Both the Tribunal and the High Court have refused to accept the presence of Dheeraj Kumar as his name was not disclosed in the FIR by the brother of the victim. This Court is unable to appreciate the aforesaid approach of the Tribunal and the High Court. This Court is of the opinion that when a person is seeing that his brother, being knocked down by a speeding vehicle, was suffering in pain and was in need of immediate medical attention, that person is obviously under a traumatic condition. His first attempt will be to take his brother to a hospital or to a doctor. It is but natural for such a person not to be conscious of the presence of any person in the vicinity especially when Dheeraj did not stop at the spot after the accident and gave a chase to the offending vehicle. Under such mental strain if the brother of the victim forgot to take down the number of the offending vehicle it was also not unnatural.
9. There is no reason why the Tribunal and the High Court would ignore the otherwise reliable evidence of Dheeraj Kumar. In fact, no cogent reason has been assigned either by the Tribunal or by the High Court for discarding the evidence of Dheeraj Kumar. The so-called reason that as the name of Dheeraj Kumar was not mentioned in the FIR, so it was not possible for Dheeraj Kumar to see the incident, is not a proper assessment of the fact situation in this case. It is well known that in a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind.”
  (emphasis added)
20. On the aspect of contributory negligence, the principle consistently applied by the Supreme Court is that such a defence must be specifically pleaded and supported by some material indicating that the claimant’s own act or omission had a proximate role in the accident. In Jiju Kuruvilla v. Kunjujamma Mohan, (2013) 9 SCC 166, the Court held that apportionment of liability arises only when there exists tangible material to infer contributory negligence, and mere conjectures cannot dilute the tortfeasor’s responsibility. Relevant paragraph is extracted as under: 
“21. In view of the aforesaid, we, therefore, hold that the Tribunal and the High Court erred in concluding that the said accident occurred due to the negligence on the part of the deceased as well, as the said conclusion was not based on evidence but based on mere presumption and surmises.”
         (emphasis added) 

21. In Sunita v. Rajasthan SRTC, (2020) 13 SCC 486, the Supreme 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 the parties. The Court emphasised that the standard of proof in motor accident claims is one of preponderance of probabilities, and not the strict standard of proof beyond reasonable doubt that applies in criminal proceedings. Relevant paragraph is extracted as under: 
“22. It is thus well settled that in motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal's role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases.”
               (emphasis added)

22. This approach was strengthened in Anita Sharma v. New India Assurance Co. Ltd., (2021) 1 SCC 171, where the Court held that hyper-technical rejection of evidence is impermissible and the Tribunal must give primacy to the overall probabilities emanating from the record. Relevant paragraph is extracted as under: 
“21. Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyse the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true.” 
(emphasis added)

23. Similarly, in Rajwati v. United India Insurance Co. Ltd., 2022 SCC OnLine SC 1699, the Supreme Court reaffirmed that the Motor Vehicles Act is a beneficial legislation and the Tribunal is not bound by strict pleadings; absent any plea or evidence of contributory negligence, the Tribunal is not required to frame or decide such an issue. Relevant paragraphs are extracted as under: 
“19. Similarly, in the case of Kusum Lata v. Satbir, this Court observed that it is well known that in a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind.
20. It is well settled that Motor Vehicles Act, 1988 is a beneficial piece of legislation and as such, while dealing with compensation cases, once the actual occurrence of the accident has been established, the Tribunal's role would be to award just and fair compensation. As held by this Court in Sunita (Supra) and Kusum Lata (Supra), strict rules of evidence as applicable in a criminal trial, are not applicable in motor accident compensation cases, i.e., to say, “the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases”.
         (emphasis added)

24. Applying these principles, it is evident that the appellant/Insurance Company did not raise any plea of contributory negligence of the Railways before the MACT nor adduce any evidence to lay the foundation for such a defence. In these circumstances, the Tribunal correctly refrained from examining contributory negligence. 
25. The Supreme Court in Prabhavathi & Ors. v. Managing Director, BMTC, 2025 INSC 293, reaffirmed that a finding of contributory negligence cannot be inferred in the absence of direct or corroborative evidence. The Supreme Court held that the High Court erred in reversing the Tribunal’s conclusion where the Tribunal had rightly found no material to indicate negligence on the part of the deceased. The Court reiterated, following Jiju Kuruvilla (supra), that negligence cannot be presumed on mere allegation. It further restated that MACT proceedings are governed by the standard of preponderance of probabilities, and strict rules of criminal evidence do not apply. Relevant paragraph is extracted as under: 
“10. We are unable to agree with the view taken by the High Court on the 25% contributory negligence of the deceased and 75% upon the driver of the bus. We find ourselves to agree with the view taken by the Tribunal on this issue. The Tribunal rightly, after considering the evidence on record and on perusal of the Ex. P3 Spot Mahazar, came to the conclusion that there wasn’t any sufficient evidence on record, indicating that the accident occurred due to negligent driving on the part of the deceased, and after considering the oral evidence of P.W.1, held the cause of the accident to be rash and negligent on the part only of the offending vehicle.
11. Thus, in our considered view, the contributory negligence taken by the High Court at 25% of the deceased is erroneous. We advert to the principles laid down in Jiju Kuruvila v. Kunjujamma Mohan, where it was held that in the absence of any direct or corroborative evidence on record, it cannot be assumed that the accident occurred due to the rash and negligent driving of both the vehicles. This exposition came to be followed in Kumari Kiran v. Sajjan Singh and Ors. In the present case, therefore, on an allegation simpliciter, it cannot be presumed that the accident occurred due to rash and negligent driving of
both vehicles, for having driven at high speed.
………
13. It is the settled law that under the Motor Vehicle Act, 1988 it is established that in compensation cases, the strict rules of evidence used in criminal trials do not apply. Instead, the standard of proof is based on the preponderance of probability. This Court in Sunita v. Rajasthan SRTC (2020) 13 SCC 468 observed that:
“22. It is thus well settled that in motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal's role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases.”

The exposition came to be reiterated in Rajwati alias Rajjo & Ors. v. United India Insurance Company Ltd. & Ors.2022 SCC Online SC 1699, wherein it was observed that :
“20. It is well settled that Motor Vehicles Act, 1988 is a beneficial piece of legislation and as such, while dealing with compensation cases, once the actual occurrence of the accident has been established, the Tribunal's role would be to award just and fair compensation. As held by this Court in Sunita (Supra) and Kusum Lata (Supra),
strict rules of evidence as applicable in a criminal trial, are not applicable in motor accident compensation cases, i.e., to say, “the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases”.”
  (emphasis added)
26. Accordingly, in the absence of any plea or evidence before the Tribunal, the contention of contributory negligence on the part of the Railways cannot be examined at this stage. The record clearly reflects that neither the driver nor the appellant/Insurance Company ever raised a defence attributing negligence to the Railway authorities, nor was any material placed before the MACT to suggest that the gateman’s conduct was a proximate or contributing cause of the accident. 
27. The other issue which has been argued relates to amount of Rs.45,000/- awarded towards pain and suffering and Rs.10,000/- towards conveyance and special diet and attendant charges. Counsel for appellant states that the victim/injured suffered no permanent disability and was hospitalised only for three days. 
28. It is however noted from the impugned award that the appellant (injured) had suffered fracture left body of mandible and fracture left scapula. Discharge summary from Sir Ganga Ram Hospital is extracted as below, which also finds note in paragraph 41 of the impugned judgment: 
“41. Claimant was treated at Maharaja Agrasen Hospital, Agroha, Hissar from 08.03.06 to 10.03.08 and thereafter he was treated at Sir Ganga Ram Hospital from 11.03.08 to 12.03.08. He has suffered fracture left body of mandible and fracture left scapula. Operation carried out at Sir Ganga Ram Hospital is as under:
“IMF + ORIF done on 11.03.08: Part painted and draped. Ehrlich arch bar fixation and IMF done. Teeth in occlusion. Local anesthesia infiltrated in lower gingivobuccal sulcus opposite 3rd molar. Left mandibular 3rd molar extracted. Incision given in mucosa. Fracture site exposed, reduced and fixed with a 5-hole titanium plate using 4 screws. Mucosal incision closed with vicryl 3-0, Chin lacerations sutured with PDS 5-0 and prolene
4-0. Chin dressing done.” 
(emphasis added)

29. On the basis of estimation of nature of injuries, this Court does not find any exaggeration in granting compensation of Rs.45,000/- towards pain and suffering. Medical bills were for Rs.76,525/- as costs of treatment which was granted and conveyance was granted since injured had to be shifted from Hisar to Delhi for treatment and Rs.10,000/- each for conveyance, special diet and attendant charges. 
30. Therefore the total compensation awarded of Rs.1,51,525/- along with interest @7.5% per annum from date of filing of the claim was proportionate and reasonable and does not require any interference by this Court.
31. The Tribunal was not amiss in awarding compensation; the amounts granted under pain and suffering, medical expenses, conveyance, special diet and attendant charges were founded on the medical record and treatment summaries placed on record, and reflect a fair and proportionate assessment consistent with the principles in Raj Kumar v. Ajay Kumar (2011) 1 SCC 343.
32. In this view of the matter, the appeal is dismissed. 
33. Pending applications are also rendered infructuous. 
34. Judgment be uploaded on the website of this Court. 



ANISH DAYAL, J
JANUARY 7, 2026/sm/tk
                                                                   

  

 MAC.APP. 273/2013                                                                                                                             2/16