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 Accident Claims Tribunal, Sibsagar in MAC Case No. 80/2001 rejecting the claim of the claimant under Section 166 of the Motor Vehicle Act, 1988 (in short, 'the Act') by holding that the involvement of the 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 the learned Tribunal, which has been registered as MAC Case No. 80/ 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 (in short, 'ONGC), 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 and a result of which her husband died, ft has further been contended in the said application seeking compensation that her husband was drawing gross salary of Rs. 49,206.03 per month 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 alongwith the claim petition has also filed an accident report submitted by the Traffic Branch of Sibsagar Police Station. The notices being issued by the learned Tribunal on the owner, driver and well as the Insurance Company, the owner and the driver choose not to contest the proceeding and did not appear, for which an order dated 30.01.2002 was passed to proceed ex -parte against them. The Insurance Company, however, on receipt of the notice, entered appearance and filed the written statement denying each and every averments 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) Sri Sanjib Mech (CW -3), who is an witness to the occurrence; (4) Sri Bonamali Handique (CW -4); (5) the Investigating Officer, who investigate 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) Shri 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. The learned Tribunal upon appreciation of the evidences on record, passed the impugned judgment and order, as aforesaid.

(2.) I have heard Mr. T.J. Mahanta, learned Counsel for the appellant. None appears on behalf of the respondent No. 1 /Insurance Company today though the power has been filed on behalf of the Insurance Company/respondent No. 1 by the learned Counsel. The owner of the vehicle inspite of the service of notice of the appeal did not contest the appeal.

(3.) MR . Mahanta, referring to the averments made in the claim petition as well as the deposition of CW -2, the claimant, CW -3, a witness to the occurrence as well as CW -5, a passenger travelling in the vehicle has contended that the owner of the vehicle having not controverted the statements made in the claim petition relating to the involvement of vehicle No. AS -25 B -5958 in the accident and there being positive evidence of CW -3 and CW -5, who are the witnesses to the occurrence, the learned Tribunal is wrong in holding that the claimant failed to prove that the vehicle No. AS -25 B -5958 was involved in the accident. According to Mr. Mahanta, the Insurance Company even while cross -examining the claimant, who examined herself as CW -2 did not suggest that the vehicle No. AS -25 B -5958 was not involved in the accident. That apart, according to Mr. Mahanta, it is evident from the deposition of the Investigating Officer, who investigate the occurrence on the basis of the first information report filed by the claimant's son after registering a police station case that it is the vehicle No. AS -25 B -5958 which was involved in the accident and after investigation the charge sheet against the driver, has been filed. Mr. Mahanta, therefore, submits that the grounds on which the evidence of these witnesses were disbelieved by the learned Tribunal are not tenable in law, more so, when in a proceeding for compensation under the Act, the provisions of the Indian Evidence Act are not to be strictly followed. Relating to the quantum of compensation to which the claimant is entitled to for the death of her husband in a motor accident occurred on 08.08.2001 arising out of the use of the aforesaid motor vehicle, it has been submitted by Mr. Mahanta that it is evident from the pay slip, which has been exhibited as Exhibit -4 issued by the authority of ONGC for the month of July, 2001 that the gross salary of the claimant's husband was Rs. 49,206.03 and the deceased having three years more service and left behind the claimant and four children who were dependent on his income, the claimant is entitled to the amount of compensation as claimed in the application filed under Section 166 of the Act.