Non-joinder of driver as a party, admissibility of owner's testimony, proof of rash and negligent driving, and determination of compensation were the main legal points established in the judgment.

Dipankar Datta, J.

1. A member of the armed forces (hereafter the victim) lost his life in a motor vehicular accident on June 18, 2011, near his home town, while he was driving a motor cycle. A collision of the motor cycle with a Maruti Swift (hereafter the offending vehicle) coming from the opposite direction led to the victim being thrown off and suffer multiple injuries. For treatment, the local people shifted the victim to a nearby hospital. Ultimately, the victim succumbed to such multiple injuries. At the time of his death, the victim was 34 years old and had a monthly income of Rs. 22,364/-. He left behind him his widow, a minor son of 7 (seven) years and his mother. The widow of the victim was also at an advanced stage of pregnancy, when she lost her life-partner.

2. On August 5, 2011, the widow, minor son and mother of the victim (hereafter the claimants) approached the relevant motor accident claims tribunal (hereafter the tribunal) under section 166 of the Motor Vehicles Act, 1988 (hereafter the Act) by presenting an application in the form prescribed by the West Bengal Motor Vehicles Rules, 1989 (hereafter the WBMV Rules) being Form COMP A. It was alleged therein that rash and negligent driving of the offending vehicle caused the accident and, therefore, the claimants prayed for compensation in a sum of Rs. 50,00,000/- plus interest and costs.

3. Form COMP A does not require any individual/entity to be impleaded as a respondent/opposite party in the claim application and hence there was no formal impleadment of the owner of the offending vehicle or its insurer as respondents/opposite parties. However, their respective particulars were mentioned against Sl. Nos. 16 and 17 of the claim application.

4. The tribunal treated the owner of the offending vehicle as opposite party No. 1 (hereafter the owner) and the insurer of the offending vehicle as the opposite party No. 2 (hereafter the insurance company) and issued notices. The owner, despite service, did not enter appearance and file her written statement; thus, the claim application proceeded ex parte against her. The insurance company upon notice being served, entered appearance, sought for leave under section 170 of the Act which was granted and filed a written statement countering the claim application. It was denied that the victim died because of the accident involving the offending vehicle. However, that the offending vehicle had been insured by it was not denied by the insurance company. It had also reserved its right to file an additional written statement, if the need therefor arises, but did not ultimately exercise that right.

5. Interestingly, apart from the denials, no specific case was set up by the insurance company in such written statement that the victim himself was at fault leading to the accident and his consequent untimely death. This point would assume significance having regard to the discussions that follow.

6. To prove the claim, the claimants adduced three witnesses. The widow was PW-1, whereas PWs 2 and 3 claimed to be eye-witnesses. The insurance company prayed before the tribunal that the owner and the driver of the offending vehicle be summoned to appear and tender evidence. The prayer was granted at the risk of the insurance company and notices were sent by registered post. Although the owner stepped into the box as OPW-1 and deposed that she was travelling in the offending vehicle when the accident occurred, that the victim while driving his motor bike was talking on a mobile phone, and that it was entirely due to his negligence that the accident occurred resulting in his loss of life, the driver did not appear. Hearing was adjourned on a couple of occasions but ultimately on January 14, 2016, the insurance company declined to "adduce further evidence".

7. The tribunal had framed four issues. Upon consideration of the evidence on