JUDGMENT :

BIBHAS RANJAN DE, J.

1. On 20.01.2000 at about 1.00 hours (at night) when Ekbir Kumar Barik was driving the vehicle being no. WB 33/ 5208, engaged by the owner, through NH 30 near Khushrupur some unknown person fired at said Ekbir kumar Barik. Immediately he was removed to Patna Hospital where he succumbed. Legal heirs/representatives of said Ekbir Kumar Barik approached the Motor Accident Claims Tribunal, District Judge, Midnapur by filing an application under Section 166 of the Motor Vehicles Act, 1994 claiming compensation to the tune of Rs. 4,00,000/-. At the time of death Ekbir Kumar Barik was 36 years old and used to earn Rs.200/- per day from his avocation of driver.

2. The motor accident claim case was registered being no. 479 of 2001 which was transferred to the Motor Accident Claims Tribunal, Learned Additional District Judge, 5th Court, Midnapur for disposal.

3. The New India Assurance Company Limited contested the claim petition by filing a written objection denying all material averments of the claim petition contending, inter alia, that death of Ekbir Kumar Barik was other than use of motor vehicle and claimants are not entitled to any compensation as prayed for.

4. Learned Motor Accident Claims Tribunal (hereinafter referred to as Tribunal) framed two issues as follows:

“(a) Is the claim case maintainable in its present form?

(b) Are the claimants entitled to get the compensation as prayed for? If so, to what extent?”

5. In course of evidence, Smt. Putul Barik, widow of the deceased, was examined as PW1 who corroborated entire averments of the claim petition. In cross-examination she stated that her husband was brutally killed by the miscreants and he was taken to Jungle where the miscreants had killed him and the dead body of her husband was recovered two days after the incident.

6. One Chaitannya Kuilla was examined as PW2, he being owner of the truck no. WB 33/ 5208 has testified that on 20.01.2000 his truck was going to Bihar by his permanent driver Ekbir Kumar Barik. He stated that on NH30 near Khushrupur some miscreants stop the truck and fired at his driver who was removed to Patna Hospital where he succumbed. During his cross-examination several questions were thrown at him regarding ownership of the truck and finally suggested that he was not owner of the truck.

7. In course of the evidence of PW1 & PW2 copy of FIR, Post Mortem Report, Driving Licence & Insurance Policy were admitted in evidence.

8. Leaned Tribunal took up both the issues together for decision. After evaluating the evidence as well as admitted documents particularly FIR in connection with Khushrupur case no. 3/2000 dated 20.01.2000 learned Tribunal recorded that the death was due to gunshot injury and homicidal in nature. Learned Tribunal also took it for granted that deceased was the driver of the truck bearing no. WB 33/5208. Learned Tribunal also recorded that it was impossible to ascertain the reason behind murder of driver by the miscreants as there was no intention to commit any act of felonious i.e. stealing the truck or snatching away any article from the truck or from the deceased or its Khalasi. After elaborate evolution of the evidence on record learned Tribunal finally came to his opinion that claimants failed to prove the death of the driver Ekbir Kumar Barik due to accident arising out of use of the motor vehicle. Accordingly, Learned Tribunal dismissed the claim petition.

9. Feeling aggrieved claimants preferred this appeal.

10. It is pertinent to mention here that both the Learned advocate, Mr. Amit Ranjan Roy, appearing on behalf of the claimants as well as learned advocate, Ms. Gopa Das Mukherjee, appearing on behalf of the Insurance Company concentrated their respective arguments on the issue of death of Ekbir Kumar Barik whether arose out of the use of motor vehicles or not.

11. Mr. Roy has contended that there is no dispute regarding death of Ekbir Kumar Barik in course of his employment particularly while he was carry