The main legal point established in the judgment is the assessment of contributory negligence and the liability of the Insurance Company in third-party claims under the Motor Vehicles Act.

JUDGMENT :

SUBHENDU SAMANTA, J.

1. Instant appeal has been preferred against the judgment and award dated 18th day of November, 2022 passed by the learned Judge Motor Accident Claims Tribunal ADJ Fast Track 4th Court Alipur in a Motor Accident Claim Case No. 01 of 2017.

2. The brief fact of the case is that one judicial officer namely Pallab Chakraborty (deceased), posted as Civil Judge (Junior Division-cum Judicial Magistrate 1st) at Dinhata Court. On 26.09.2016 at about 9:20 hrs, while he was driving a Maruti/Swift Dezire Car bearing No. WB 02AH0740 with his personal home guard namely Nilmani Roy (HG/232) met with an accident due to rash and negligent driving of a driver of a Bolero Car being registration No. WB-74TC-802 (Bolero) New Car No. WB-85-0609 By such accident the Judicial Officer suffered serious injury on his person and immediately was taken to MJN Hospital Cooch Behar, where the doctor declared him brought dead.

3. The parents of the deceased Judicial Officer preferred an application before the Learned Tribunal u/s 166 of Motor Vehicles Act for getting compensation on the ground that they lost their son due to rash and negligent driving of the driver of the offending vehicle duly insured under the policy of the Insurance Company. The owner of the offending vehicle did not contest the matter. The Insurance Company contested the claim case by filing written statement and also filed one additional written statement. Moreover, Insurance Company contested the claim case on all available grounds after obtaining a leave u/s 170 of MV Act.

4. Learned Tribunal after hearing the parties and after receiving the evidences awarded compensation of Rs. 1,05,01,625/- together with 6% interest per annum from the date of filing of the claim application. The Insurance Company was directed to pay the compensation.

5. Being aggrieved by and dissatisfied with the said award the Insurance Company has preferred the instant appeal.

Learned Advocate Mr. Rajesh Singh appearing on behalf of the Insurance Company submits that the Insurance Company has challenged the award mainly on two grounds:

Firstly: there are contributory negligence on the part of the victim in such accident.

Secondly: the Insurance Company has no liability to pay the compensation.

6. The claimants also preferred a cross-appeal against the stating award on the ground that the Learned Tribunal has failed to consider pay slip of the deceased including the parks thereof to assess the monthly income of the deceased.

7. One application being No. CAN No. 3 of 2023 was filed on behalf of the claimants/respondents for production of additional evidence in this appellate stage on the ground that the income of the deceased/judicial officer was revised vide notification No 501-J/ JD/V/3R-27/12 dated 07.02.2023. The CAN Application being 3 of 2023 is also taken up along with the hearing of its instant appeal.

Owner of the offending Bolero Car first time appeared before this Appellate Court and argued against the award.

Regarding Contributory Negligence

Mr. Singh submits that the Insurance Company has submitted one additional written statement before the Learned Tribunal contending inter alia that the accident happened due to the negligent driving of the victim it has been alleged in the additional written statement of the Insurance Company that the victim was driving his vehicle at about the speed of 100 to 120 KM per hour. Due to the rash and negligent driving of the deceased victim the accident was happened the so called Bolero Car was not responsible for the accident. Mr. Singh further submits that at the time of the accident the victim was driving the Maruti Car/Swift Dezire while his personal Home Guard namely Nilmani Ray was sat beside the driver (victim). The Said Nilmani Ray was cited as an eye witness of this case as PW-2. During his cross-examination he admitted that he was sitting at the left side of the judicial officer (victim) during his further cross-examination he admitted that he