Point of Law : Interest of justice could be met if matter is remanded back to learned Tribunal below to pass an just award on basis of material available on record relating to income and age of deceased.

JUDGMENT :

Heard Mr. S. Dutta, learned Senior counsel assisted by Ms. I. Das, learned counsel for the claimants/ appellants. Also heard Mr. Sishir Dutta, learned Senior counsel assisted Mr. S. Dutta, learned counsel representing Insurance Company.

2. This appeal is preferred by the two claimants against the judgment dated 23.12.2013 passed by the learned MAC, Tribunal, Kamrup, Guwahati whereby the claim of the present appellants was dismissed.

3. The accident and the claim:

On 10.12.2006, the deceased Vishal Agarwal along with other occupants late Karan Agarwal and one Sri Kishan Prithani was coming towards Tinsukia from Dibrugarh in a Chevrolet Aveo car bearing registration No. AS-23/ E-4999. The owner of the car was one Sri Ram Avatar Agarwal and same was being driven by deceased Vishal Agarwal. When they reached near Balmikibasti at Chabua, at about, 11.30 p.m-11.45 p.m., the alleged offending vehicle Mahindra Maxx bearing registration No. AS-23/ E-2134, which was proceeding towards Dibrugarh from Tinsukia being driven in rash and negligent manner, knocked down the Chevrolet Aveo car resulting in grievous injury to Vishal Agarwal and Sri Kishan Prithani while the other occupant Karan Agarwal died on the spot. The victim Vishal Agarwal was shifted to Brahmaputra Hospital, Dibrugarh, but he succumbed to his injuries on the way to the hospital. The deceased was aged 25 years at the time of his death and the claimants claim that he had an earning of Rs.75,000/-per month being Director of a firm M/s Express Wing Pvt. Ltd. The claimants are the parents of said deceased Vishal Agarwal. The parents filed the claim before the Tribunal claiming compensation of Rs. 1 Crore for death of their son Vishal Agarwal. The Insurance Company filed written statement and took usual pleas like suppression of material facts, defect in the form of the claim etc. They also disputed the income of the deceased as well as his age. The Insurance Company took a stand that denying the date and time of the accident as neither owner of the vehicle nor the police officer has informed the Insurance regarding the alleged accident. They had put the onus of proof upon the claimant that the Insured vehicle (Mahindra Maxx) was driven in a rash and negligent manner. They denied that the alleged accident occurred due to rash and negligent driving of the vehicle bearing registration No. As-23/ E2134 (Mahindra Maxx).

4. The learned appellate court framed the following two issues :

“1. Whether victims, Vishal Agarwal and Karan Agarwal, died in the alleged accident dated 10.12.06 involving vehicle No. As-23/ E-2134 and whether the said accident took place due to rash and negligent driving of the driver of the offending vehicle?

2. Whether the claimants are entitled to compensation as prayed for, if yes, to what extent and by whom amongst the opposite parties, the said compensation amount will be payable?”

5. While dealing with the first issue, the learned Tribunal below came to a conclusion that the accident took place not due to rash and negligent driving of the Mahindra Maxx but due to rash and negligent driving of Chevrolet Aveo which was driven by the deceased Vishal Agarwal and accordingly denied any compensation to the claimant on the death of their son Vishal Agarwal. However, the learned Tribunal below awarded a compensation amounting to Rs.16,60,000/- to the co-occupant Karan Agarwal who died in the accident as Chevrolet car’s (which was driven by Vishal) insurance policy was a package policy.

6. The learned court below came to such finding heavily relying on the photographs of the vehicles taken after the accident at the place of the accident and were exhibited by the Insurance Company. The finding of the learned Tribunal below, on such photographs can be summarized as follows :

I. The photographs have been admitted by eye witness i.e. the PW5 (Kishan Prithani) and the SI of Police who investigated into the accident i.e. PW6.

II. On perusal of the photographs there is no