JUDGMENT :

MANISH CHOUDHURY, J.

1. This is an appeal under Section 173 of the Motor Vehicle Act, 1988, as amended (hereinafter referred to as the Act, in short), preferred against the judgment and award dated 13.12.2013 passed by the Motor Accidents Claims Tribunal, Lakhimpur in MACT Case No. 11/2012. By the said judgment and award dated 13.12.2013, the learned Member, Motor Accident Claims Tribunal, Lakhimpur, North Lakhimpur had dismissed the claim application of the claimants, who are the appellants in the present appeal.

2. The facts leading to the institution of MACT Case No. 11/2012 are recapitulated, in brief. On 02.11.2011 at about 9.30 am, the deceased, Bhadreswari Mili was proceeding to Pathalipahar as a pillion rider on a motorcycle bearing registration No.AS.07.TC-002, which belonged to her husband and was being driven by her son. At the relevant point of time, a vehicle bearing registration No. AS.07.C-2132 (709 truck) coming from the back side, dashed the motorcycle from behind. As a result, the deceased fell down from the motorcycle and sustained grievous injuries on her person. Due to the injuries sustained, the deceased died instantaneously on the spot. In respect of the said accident, a police case was also registered at Bihpuria Police Station being Bihupuria PS Case No. 313/2011 under Section 279/304(A), IPC against the driver of the vehicle bearing registration No.AS.07.C-2132 (709 truck). In connection with the said death of the deceased in the motor vehicular accident, the 4 (four) claimants instituted an application under Section 166 of the Act seeking compensation before the Motor Accidents Claims Tribunal, Lakhimpur for the death of the deceased. The claimant No. 1 is the husband. While the claimant No. 2 and claimant No. 3 are the sons of the deceased, the claimant No. 4 is the daughter of the deceased.

3. Pursuant to the institution of the claim application as MACT Case No. 11/2012, notices were issued to the opposite parties for their appearances. The driver, owner and insurer of the vehicle bearing registration No. AS-07.C-2132 (709 truck) were arrayed as the opposite party No. 1, 2 and 3 respectively. On receipt of notices, all the opposite parties had appeared and filed their written statements. The driver and the owner contended in their joint written statement that there was no rash and negligent driving on the part of the truck and it was the driver of the motorcycle i.e. the claimant No. 2, who was solely responsible for and contributed to the accident. It was further contended that at the relevant point of time, the truck was having a valid policy of insurance duly insured with the opposite party No. 3.

4. The opposite party No. 3 as the insurer, had duly appeared in the proceeding of MACT Case No. 11/2012 and contested the proceeding by filing the written statement. In the written statement, it was contended that the accident took place due to fault on the part of both the vehicles and therefore, the amount of compensation should be apportioned between the two vehicles. They denied rashness and negligence on the part of the truck.

5. On the basis of the pleadings of the parties, the tribunal below had framed three issues for adjudication of the claim application as under:-

1. Whether the accident took place on 02.11.2011 at about 9.30 am on PWD road near Sonari Gaon LP School under Bihpuria PS due to rash and negligent driving of the vehicle bearing registration No. AS.07/C-2132 (709 truck) causing death of Bhadreswari Mili, the wife and mother of the claimants?

2. Whether the claimants are entitled to get any compensation as prayed for?

3. What other relief/reliefs the parties are entitled to?"

6. In support of the claim application, the claimants' side examined three witnesses and exhibited a number of documents. The claimant No. 2, Sri Jaganath Mili examined himself as CW-1. One Sri Amar Biswas was examined as CW-2 and CW-3 was one Moneswari Pegu, who was the President/Secretary of a co-operative