S. Talapatra, J.

1. Heard Mr. S.K. Barkataki, learned counsel appearing for the appellants. Also heard Mr. A. Ahmed, learned counsel for the respondent No. 1, the United India Insurance Company Ltd. as well as Mr. U. Datta, learned counsel for the respondent No. 4, the National Insurance Company Ltd. By this appeal filed under Section 173 of the Motor Vehicles Act, 1988 the judgment and award dated 14.06.2005 as passed by the learned Member, Motor Accident Claims Tribunal, Kamrup, Guwahati, in MAC Case No. 1699/2003, has been assailed on the solitary ground that whether contributory liability of the accident as has been shifted on the deceased is sustainable and if not, what consequence would set in.

2. The accident in question took place on 18.03.2003 at midnight about 0200 hours and according to the claimants one Tata Mobile Vehicle bearing Registration No. AS-25/C-8700, insured with the respondent No. 1, being driven in rash and negligent manner, knocked down the Scooter bearing Registration No. AMU-6061, coming from the Ganeshguri side. As a result, the scooterist, namely Devki Nandan Sharma and the pillion rider, namely Sanjay Sharma received serious injuries and ultimately the scooterist, Devki Nandan Sharma succumbed to the injuries in the hospital.

3. The appellant No. 1, the wife of the deceased, deposing as PW. 1, stated that in the following morning, she came to know about the accident. She stated that her husband was aged about 50 years at the time of the accident and he was a business man and his monthly income was Rs. 12,000/-. The opposite party Nos. 3 and 4 cross-examined her but they did not project any issue relating to contributory negligence.

4. PW. 2 namely, Sri Bhakti Ram Kakati, a Sub-Inspector of Police, conducted the investigation into the said accident on the basis of a G.D. Entry No. 573 dated 18.03.2003. He stated that he visited the place of occurrence and ascertained that the accident occurred due to rash and negligent driving of the said Tata Mobile Vehicle. The ejahar was lodged against the driver of the Tata Mobile Vehicle and on the basis of that the accident information report was also submitted in the Motor Accident Claims Tribunal, Guwahati.

5. In the written statement as well as in the written argument, the respondent No. 1, United India Insurance Company Ltd. raised however the plea of contributory negligence but they did not place any evidence in support of their contentions.

6. The learned Tribunal while discussing over the issue of contributory negligence, held:

....it is difficult to come to the finding that only the driver of the Tata Mobile was responsible for the accident.

The evidence of the PW. 2 (the Investigating Officer) was discarded by holding that he is not an eye witness to the occurrence and it is not possible for him to say how the accident took place. He ascertained from others regarding the accident, but those persons were not examined by the claimant. What he stated in the Court as Investigating Officer is hearsay evidence and is not admissible. He simply found the Tata Mobile and the scooter in the place of occurrence and also found the injureds. His evidence would not prove that the driver of the Tata Mobile was solely responsible for the accident. In the cross-examination, he admitted that chargesheet has not been filed the case. Claimant produced the accident information report, Ex.1, Certified copy of the GD. Entry, Ex.2, Certified copy of the FIR, Ex.3 during the trial. In the FIR, Ex.3, PW.2 mentioned that the Tata Mobile was coming from the side of Khanapara at a high speed in a rash and negligent manner and knocked the scooter near the divider in front of the ASTC Bus Stand. In the FIR, he has involved the fault to the driver of the Tata Mobile. In the FIR he has not divulged the name of the persons from whom he ascertained these facts.

7. Learned counsel appearing for the appellant placed reliance on a case as rendered by the Apex Court in Usha Rajkhowa & Ors