RAMANIBALA DAS Vs. AJIT DAS

JUDGEMENT

(1.) This instant appeal is directed against the judgment and award dated 17th Day of February, 2009 passed by the Motor Accident Claims Tribunal, 1st Court, Bankura in MACC No. 20 of 2007/110 of 2005, thereby the learned Tribunal has dismissed the claim application on contest against the respondent no. 3/Insurance company and ex parte against other respondent nos. 1 and 2/owners of the offending vehicle without order as to costs in a death case filed under Sec. 166 of the Motor Vehicles Act, 1988 ( herein after referred as ' the said Act').

(2.) The facts leading to filing of this appeal, is summarised as follows: The victim, Rabilochan Das, being one of the passengers of the offending bus bearing No. WB-67/2057 name and style as 'Maa Kamakhya' was proceeding towards Bankura on 28/7/1998 at about 3.40 p.m. At that point of time, a serious accident occurred due to rash and negligent driving by the driver of the said offending vehicle causes and serious injuries on the person of the victim. Victim succumbed due to his serious injuries. The said accident was taken place when the bus reached near Gandeswari River Bridge. A case was registered being FIR No. 99/98 dtd. 28/07/1998 against the driver of the offending vehicle under Sec. 279/338/304A of the Indian Penal code. After completion of investigation, the investigating officer has submitted charge sheet against the driver of the offending vehicle bearing No. WB-67/2057 under Ss. 279/337/ 338/ 304 of the IPC.

(3.) The appellants have filed an application for compensation under Sec. 166 of the Motor Vehicles Act before the Motor Accidents Claims Tribunal impleading the owners of the vehicle and insurer of the offending vehicle, the New India Assurance Company Limited. However, the owners of the offending vehicle did not contest the case from the beginning whereas, the New India Assurance Company Limited has contested the case by filing written statement contending therein that respondent no. 3 does not admit the death of the victim, Rabilochan Das due to the alleged motor traffic accident. The plea of the insurance Company was that the deceased was not the bona fide passenger of the offending vehicle in question. Furthermore, the Insurance Company denied and disputed all the allegations levelled by the appellants/claimants and finally contended that actually the victim was on the roof of the bus and when the bus reached near Lalbazar at that time one calf suddenly crossed the road in a running condition as such driver of the vehicle tried to save the accident applying sudden brake. As a result, wheel of the bus skidded under the flank portion of the pitch road. At that point of time, the victim jumped from the roof to save himself and sustained injuries. Victim died due to his own fault, carelessness and negligence. Therefore, the insurance company is not liable to indemnify the insured.