DIBYALATA KONWAR Vs. NEW INDIA ASSURANCE CO LTD

JUDGEMENT

(1.) - This appeal by the claimant is directed against the judgment dated 13. 10. 2004 passed by the learned member, Motor Accidents Claims Tribunal, sibsagar in M. A. C. Case No. 80 of 2001 rejecting the claim of the claimant under section 166 of Motor Vehicles Act, 1988 ('the Act') by holding that the involvement of motor vehicle bearing registration No. AS 25-B 5958 (bus) could not be proved. The claimant-appellant filed an application under section 166 of the Act before learned Tribunal, which has been registered as m. A. C. Case No. 80 of 2001 claiming compensation of Rs. 36,58,700 for the death of her husband, Puneswar Konwar, aged about 55 years and an employee under Oil and Natural Gas Corporation ('o. N. G. C. '), contending that while her husband was returning home on a bicycle from the house of a relative after attending some social function and reached near Darika Bridge, sibsagar, the offending vehicle bearing registration No. AS 25-B 5958 dashed him from behind causing severe injuries as a result of which her husband died. It has further been contended in the said application seeking compensation that her husband was drawing gross salary of Rs. 49,206. 03 p. m. and left behind apart from the claimant three sons and one daughter, who at that relevant point of time, were aged about 23, 20, 17 and 14 years respectively. The claimant along with the claim petition has also filed an accident report submitted by the Traffic Branch of Sibsagar Police Station. The notices being issued by learned tribunal on the owner, driver as well as the insurance company, the owner and the driver chose not to contest the proceeding and did not appear for which an order dated 30. 1. 2002 was passed to proceed ex parte against them. Insurance company however, on receipt of the notice entered appearance and filed the written statement denying each and every averment made in the claim petition, such denial, however, was not specific. The claimant, in support of his claim, examined five witnesses, namely, (1) Dr. Robindra Nath Bordoloi, CW 1, who held the autopsy on the dead body of Puneswar Konwar, the husband of the claimant; (2) the claimant herself, CW 2; (3) Sanjib Mech, CW 3, who is a witness to the occurrence; (4) Bonamali Handique, cw 4; (5) the investigating officer who investigated the incident on the basis of the first information report submitted by the claimant's son and filed the charge-sheet as CW 5; and (6) Prabhat Dihingia, CW 6, who travelled in the bus as a passenger. The insurance company though contested the proceeding by filing written statement did not adduce any evidence. The owner and the driver also did not participate in the proceeding and did not cross-examine the claimant's witness though they were cross-examined by the insurance company. Learned Tribunal, upon appreciation of the evidence on record passed the impugned judgment and order as aforesaid.

(2.) I have heard Mr. T. J. Mahanta, the learned counsel for the appellant. None appears on behalf of the insurance company, respondent No. 1, today though the power of attorney has been filed on behalf of the insurance company, respondent No. 1, by the learned counsel. The owner of the vehicle in spite of the service of notice of the appeal did not contest the appeal.

(3.) MR. Mahanta, learned counsel for the appellant prays for striking out the name of the driver of the vehicle, respondent No. 3. The name of driver of the vehicle is struck-off from the list of respondents, which shall, however, not make the present appeal non-maintainable on two grounds, firstly he did not contest the proceeding before the learned Tribunal and secondly a claim petition is maintainable even in the absence of the driver as party.