A.B. Pal, J.

1. This appeal is directed against the judgment dated 27.9.2004 passed by learned Member, Motor Accident Claims Tribunal, North Tripura, Kailashahar in Title Suit No. (MAC) 1999 awarding an amount of Rs. 1,70,200/- with interest at the rate of 9% per annum from the date of presentation of the petition on 15.11.1999 for the death of one Arup Kanti Choudhuiy in a vehicular accident on 30.3.1999. The National Insurance Company Ltd., being the insurer of the vehicle involved in the accident has been made liable to pay the said amount. Aggrieved, the insurer has filed the present appeal.

2. I have heard Mr. A. Lodh, learned Counsel for the Appellant, Mr. P.R. Barman and Miss P. Dhar, learned Counsel for the Respondents.

3. On 30.3.1999 a vehicle bearing No. TR-02-0363 (Tractor) owned by Golakpur Tea Estate, the third Respondent herein was proceeding from Jagannathpur Tea Estate to Golakpur Tea Estate. The deceased Arup Kanti Choudhury, who was a Compounder in the employment under Golakpur Tea Estate was behind the wheels. Though he was not the driver of the vehicle, under the instruction of the management of the said Tea Estate he was driving the vehicle on that fateful day at about 8.45 a.m. However, the said vehicle met an accident causing grievous injury to him, which brought his end on the same day. He left behind his widow mother and wife with a baby who claimed compensation to the tune of Rs. 6,73,000/-.

4. The claim was contested by the owner as well as the Insurance Company. The owner of the vehicle contended inter alia that the deceased drove the vehicle without any authority or permission from the owner or the driver of the vehicle. According to the third Respondent, the vehicle was being driven by its driver, Babul Singh Sonar and the deceased along with others were in the vehicle proceeding towards Golakpur Tea Estate. On the way, the driver stopped the vehicle and went road side jungle to attend to nature's call when be deceased without taking permission from the driver went behind the wheel and drove the vehicle even though he had no driving licence. His unauthorized action was responsible for his death for which nobody except him shall be liable. It has been admitted that me deceased was an employee under the owner of the vehicle but denied the contention of the claimant-Respondents that he drove the vehicle under instruction of the owner of the vehicle as the regular driver was absent on that date. The National Insurance Company Ltd, the Appellant herein, however, had taken a different stand in their written statement contending inter alia that the deceased was not at all driving the vehicle on the date of accident. It was also not admitted by the insurer that the deceased was an employee of the Golakpur Tea Estate. It is not understood why such a defence was taken by the insurer when the owner in clear terms admitted that Arup Kanti Choudhury was an employee but he was driving the vehicle without any instruction. However, the insurer admitted that the vehicle was insured with them on the date of accident.

5. The learned tribunal after careful appreciation of the materials on record came to decide that the deceased Arup Kanti Choudhury died in the accident involving the vehicle TR-02-0363 without, however, touching the question about the liability of the deceased for his contributing negligence in the said accident. The other question whether the insurer can be made liable to pay the compensation in the given facts and circumstances of the case when it is admitted by the owner that the deceased, who had unauthorisedly driven the vehicle, had no licence has not been adverted to by the learned Tribunal.

6. It is noticed that the claimant-Respondents examined only three witnesses, two of them are claimants herein, and the third is one Dipendra Malakar who was traveling by the said vehicle. He stated in his deposition that the deceased was driving the vehicle under the order of the Jagannathpur Tea Estate