Kalyan Rai Surana, J.

Heard Mrs. R.D. Mozumdar, the learned counsel for the appellant. None appears on call for the respondents although notices have been duly served in a substituted manner by publishing the same in one English and one Assamese daily circulating in the State. Therefore, the appeals are heard ex-parte against the respondent in both the appeals.

2. These two appeals under Section 173 of the MV Act, 1988, are preferred against the common judgment and award dated 16.05.2011, passed by the learned Member, M.A.C. Tribunal, Kamrup (M), Guwahati in MAC Case No. 2104/2008 and MAC Case No. 2105/2008.

3. The case of the respondent No. 1/claimant in both the cases is that on 08.02.2008, while the respondent No. 1(in MAC Appeal No. 167/2011)/claimant, namely, Anil Nath was riding on a motorcycle bearing registration No. AS-13-9875 as a pillion rider from Mazbat towards Batabari, the motorcycle which was being given by Amit Rava (since deceased) hit against a tree. As a result of the accident, both the rider of the motorcycle as well as the respondent No. 1 sustained grievous injury. On way to hospital, the rider of the offending vehicle had died. The appellant, who was the opposite party No. 3 in the claim petition, contested the case by filing written statement and took a plea that the rider of the motorcycle was responsible for the accident and the onus of proving the claim was put on the respondent No. 1. The respondent No. 2 who is the owner of the vehicle did not contest the case and the case had proceeded ex-parte against him. The claim case filed by the mother of the rider of the motorcycle, was numbered as MAC Case No. 2104/2008, which is the subject matter of MAC Appeal No. 167/2011. The analogous appeal in respect of the aforesaid MAC Case No. 2104/2008, is numbered as MAC Appeal No. 168/2011.

4. The records reveal that by an order dated 22.10.2008, it was ordered by the learned Tribunal that MAC Case No. 2104/2008 would not be taken up analogously and it was separated because of the reason that while MAC Case No. 2104/2008 was filed under Section 163-A of the M.V. Act, the other case i.e. MAC Case No. 2105/2008 was instituted under Section 166 of the M.V. Act. However, while delivering the judgment impugned herein, it appears that both cases i.e. MAC Case No. 2104/2008 and MAC Case No. 2105/2008 was analogously heard by merging both the cases together and it was disposed of by a common judgment.

5. Upon pleading of the parties, the following issues were framed for adjudication:

(i) Whether the victim, Amit Rava, died and the claimant, Sri Anil Nath, sustained injuries in the alleged accident dated 08.02.2008 involving vehicle No. AS-13-9875 and whether the said accident took place due to sue of the vehicle/rash and negligent driving of the driver of the offending vehicle ?

(ii) Whether the claimants are entitled to receive any compensation if yes, to what extent and by whom amongst the opposite parties, the said compensation amount will be payable?

6. In support of the claim, the respondent No. 1/claimant, namely, Anil Nath (in MAC Appeal No. 167/11) and Smt. Diperi Rabha (in MAC Appeal No. 168/11) examined themselves as PW.1 in their respective cases and in case of Anil Nath, he also examined one Dipankar Das stated to be an eye witness of the accident as PW.2. In case of Smt. Diperi Rabha, one Bapen Rabha was examined as PW.2. In support of the defence, the appellant herein had examined two witnesses one Himangshu Das as DW.1 and one Kanak Chandra Saharia as DW.2.

7. In respect of issue No. 1, the learned Tribunal held that the accident occurred due to lack of proper care and attention in driving the vehicle and in other words, it was held that the negligence was thereon part of the driver of the motor vehicle. Hence, the learned Tribunal arrived at a finding that the accident causing injury to Anil Nath (respondent No. 1 in MAC Appeal No. 167/11) and death of the victim, Amit Rava occurred due to rash and