JUDGMENT :

1. By this appeal, the Oriental Insurance Company Limited takes an exception to a Judgment and Award dated 31st July, 2004 passed by the Chairman, The Motor Accident Claims Tribunal, Solapur (for short ‘M.A.C.T”) in M.A.C.P No.171 of 1997, by which the original respondents were awarded compensation to the tune of Rs.20,00,000/-, on account of death of one Devidas Rakhmaji Gujarathi in motor vehicle accident, which occurred on 26th August, 1996.

2. Briefly stated, the facts are as follows;

Devidas Rakhmaji Gujarathi (for short ‘deceased’) was 46 years old hale and hearty Ward Officer working with Municipal Corporation of Greater Mumbai. On the fateful day of 26th August, 1996, he was travelling in his Maruti Car bearing Registration No. MP-28 799 from Chiplun to Mumbai by Mumbai – Goa National Highway No.17. Maruti car was being driven by his Driver Birjusingh Bahadursingh. When the car was approaching the spot of accident, a Luxury Bus bearing Registration No. MH-02/9612 (for short ‘offending bus’) came from opposite direction in a tremendous speed. The offending bus came to the wrong side of the road and dashed against Maruti Car coming from opposite direction. Due to the collision between those two vehicles, deceased was seriously injured. He was immediately taken to Mumbai and was admitted in Lokmanya Tilak Hospital. He was in coma for nine days. Ultimately, he succumbed to the injuries.

The Police reached the spot, drew spot panchanama and recorded the statements of the witnesses. A sketch map of scene of occurrence was also prepared by the Investigating Agency.

Respondent No.1-Sadhana is the widow of the deceased. Respondent No.2-Harsha was son of the deceased and respondent No.3-Vithabai was the mother of the deceased. A Claim Petition bearing No.171 of 1997 came to be filed in M.A.C.T, Solapur against respondent No.4-M/s. Vaneeta Travels and respondent No.2, it’s insurer viz. The Oriental Insurance Company Limited.

3. Despite service of the notice, respondent No.4-owner of the offending bus did not appear and, therefore, the claim proceeded ex-parte against it.

4. The appellant-insurer in it’s written statement has resisted the claim. The factum of fatal accident resulting into the death of deceased has been admitted. However, the appellant-insurer has denied that the accident had taken place due to rash and negligent driving by the Driver of the offending bus. It is a specific contention of the appellant-insurer that the Driver of the offending bus was driving it in a moderate speed from the correct side of the road by observing traffic rules. When it reached near the spot of the accident, Maruti Car came from opposite direction in a very high speed which was being driven by the deceased and not by the Driver as contended by the respondents. The deceased lost control over the car resulting into a dash against the offending bus.

5. Thus, it is contended by the appellant-insurer that the accident had occurred due to the own negligence of the deceased and, therefore, the respondents-claimants cannot claim compensation from the insurer of the offending bus. In the alternative, it is the contention of the appellant that the accident had taken place due to contributory negligence of the Drivers of both the vehicles. It is also the contention of the appellant-insurer that a cheque of the premium of the insurance policy issued by respondent No.4-M/s. Vaneeta Travels, owner of the offending bus, was dishonoured; the insurance policy was cancelled and the requisite intimation was given to the owner and, therefore, the risk in case of third party claim does not exist. The Insurance Company has also denied the age, income and status of health of the deceased as contended in the application.

6. After framing necessary issues and recording the evidence of respondents and one Mr. Demelo Charls Alex, employee of Bombay Municip