JUDGMENT AND ORDER

1. Heard Mr. R. Goswami, the learned counsel for the appellant as well as Mr. K. Bhattacharjee, the learned counsel appearing for the respondent No. 1/Claimant and Mr. R. Baruah, the learned counsel appearing for respondent No. 2, i.e., owner-cum-driver of the offending vehicle.

2. This appeal under section 173 of the Motor Vehicles Act, 1988 is directed against the judgment and award dated 29.8.2015 passed by the learned Member, Motor Accident Claims Tribunal, Jorhat in MAC Case No. 41/2008.

3. The respondent No. 1 had lost her husband in a motor accident which took place at about 8:00 a.m. on 10.12.2007 at Bengena Ati PWD Road under Majuli P.S. in the district of Jorhat. While the deceased was on way from Kamlabari to his residence on his bicycle, the offending bus bearing registration No. AS-07-A-6858 came at a high speed, being driven in a rash and negligent manner and hit the deceased from back side. As a result of the accident, the deceased died on spot. The deceased was an employee of Irrigation Department. The respondent No. 2, who is the owner-cum-driver of the offending vehicle, had contested the suit by his filing written statement and denied that he was driving the vehicle in a rash and negligent manner. The appellant also contested the claim. By taking usual plea of denial, they took a plea that the vehicle was not insured for liability under Motor Vehicles Act, but the respondent No. 2 had taken a policy of “Rasta Apatti Kavach” policy.

4. Upon pleadings, following issues were framed for trial:

(i) Whether the driver of the offending vehicle No. AS-07 A/6858 (bus)?

(ii) Whether the insurance policy No. 530108/48/06/60/00000477 was a motor legal liability policy?

(iii) Whether the claim of the claimant is excessive?

(iv) Whether the claimant is entitled to get any compensation? And, if so, to what extent and by whom it shall be paid?

5. In support of the claim, the claimant had examined herself as PW-1. She had also examined two eye witnesses of the accident, Shri Arun Bora (PW-2) and Shri Bipul Payeng (PW-3), and exhibited the following documents, viz., Police report in Form No. 54 (Ext. 1), Certified copy of post mortem report (Ext.2), Certificate copy of ejahar (Ext.3), Certified copy of seizure-list (Ext.4) Salary certificate (Ext.5) and Salary certificate of deceased (Ext.6).

6. The appellant had examined Shri John Kenedy Sanat, Administrative Officer as DW-1 and had exhibited the policy document as Ext.A.

7. In respect of issue No. 1, the learned Tribunal, relied on the evidence of PW-2 and PW-3, who were eye witnesses to the accident and also relied on the accident information report (Ext.1), which revealed that charge sheet was filed against the respondent No. 2 in connection with Majuli P.S. Case No. 46/2007 under section 279/304A/427, IPC, and it was held that the death in the accident had taken place due to rash and negligent driving of the offending vehicle by the respondent No. 2. In respect of issue No. 2, based on the evidence of DW-1 as well as Ext.A, the learned tribunal held that in his deposition, DW-1 neither explain the terms and conditions of policy nor could give any explanation as to why the policy in question does not cover the instant case of death of the deceased in road traffic accident and accordingly, it was presumed that the testimony divulged that the appellant had issued the policy which was a “Motor Legal Liability Policy”. Accordingly, the issue was decided in favour of the respondent No. 1. In respect of issue Nos. 3 and 4, the compensation of Rs. 8,33,200 was awarded against the appellant as follows:  

8. Challenging the award, the learned counsel for the appellant had submitted that the “Rasta Ap