ORIENTAL INSURANCE CO. LTD Vs. KALYANI ROY

JUDGEMENT

(1.) THIS appeal has been filed by the appellant insurance company (Oriental Insurance Co. Ltd.) against the award dated 27th June, 1991, passed by the Member, Motor Accidents Claims Tribunal, Shillong, in M.A.C. Case No. 11 of 1987. A mini bus No. MLK 2303 was involved in an accident on 2nd March, 1987 and as a result the husband of the claimant No. 1 and the father of the claimant Nos. 2 and 3 died. The claimants filed a case claiming compensation of Rs. 12,00,000/ - (M.A.C. Case No. 11 of 1987). Seven issues were framed by the Member, M.A.C.T., Shillong. Eight witnesses were examined on behalf of the claimants and the respondent No. 4 examined 1 (one) witness. The owner also proved the policy, Exh. A. After closure of the evidence the Tribunal gave an award of Rs. 1,50,000. The Tribunal also held that the appellant insurance company is liable to pay the entire amount and accordingly the insurance company was directed to pay the awarded amount within a period of three months from the date of the award, failing which the awarded amount would carry interest at the rate of 12 per cent per annum. Against that award, the insurance company has preferred this appeal.

(2.) I have heard the learned counsel for appellant and respondent Nos. 1, 2 and 3 and also respondent No. 4.

(3.) ON the rival contentions of the parties, it is to be seen whether the impugned award is sustainable in law. Mr. Jindal draws my attention to the last line of the evidence of Tarun Baruah, S.I. of Police, MLP, CW 5, where he stated that the victim fell down from the footboard of the bus. From this evidence it is clear that the petitioner was a passenger and not a pedestrian. However, Mr. Jindal candidly submits that the CW 5 was not an eyewitness, his evidence is based on the statements recorded by him under Section 161, Criminal Procedure Code. Mr. Das, on the other hand, draws my attention to the portions of the evidence of PWs 6, 7 and 8. As per the evidence of the said witnesses, the deceased was a pedestrian. The evidence of CW 5 is based on the statements of the witnesses recorded under Section 161, Criminal Procedure Code and, therefore, his evidence cannot be relied on. On the other hand, there is positive evidence of PWs 6, 7 and 8, wherefrom it is abundantly clear that the deceased was not a passenger. Accordingly, I hold to be so and the insurance company is, therefore, liable to pay compensation in accordance with law.