Point of Law : Not only his evidence regarding rash and negligent driving of driver of offending vehicle (Truck) was unshaken but also it was reaffirmed during cross-examination that there was no fault on part of the Bolero.

JUDGMENT :

Heard Ms. M. Choudhury, learned counsel for the appellant /Insurance Company. Also heard Mr. Khan, learned counsel for the respondent/claimants.

1. The Accident:-

The case of the claimant respondent is that on 16.01.2015 while their son was coming from Manikpur towards his home in the vehicle bearing registration No. AS-19/G-4224 (Bolero) along with his relatives and while it reached at Hapachara under Bongaigaon Police station, another vehicle bearing registration No. WB-57/B-4589 (Truck) was coming from opposite direction in a rash and negligent driving knocked down the Bolero Car and as a result their son died on the spot.

2. The Claim and Award:

The claim petition was filed by the claimants namely Smt Srimati Baruah and Sri Jibendra Narayan Baruah under Section 166 of MV Act, 1988 seeking compensation at Rs.7,65,000/- only from the opposite parties for the death of their minor son Dhurjyoti Baruah due to the vehicular accident occurred on 16.01.2015 at about 06.45 at Hapachara, District-Bongaigaon.

After perusal of the materials available on record, the learned Tribunal directed the opposite party No. 1(b), the Oriental Insurance Co. Ltd. insurer of the Truck bearing registration No. WB-57/B-4589 (Truck) to make payment of Rs.3,55,000/- along with interest @ 6% per annum from the date of filing the claim petition till the date of its realization.

3. Stand of the respondents Insurance Company before the learned Tribunal:

The insurance company i.e. Oriental Insurance Co. Ltd. filed their written statements inter-alia taking the usual plea like lack of cause of action, non-compliance of statutory provision of insurance law, principles of waiver, acquiescence and estoppels, non-joinder of necessary party etc. etc. The insurance company further took a stand that the claimant is to prove the accident and a specific plea was also taken that the accident had not taken place due to rash and negligent driving of the driver of Truck (WB-57/B-4589) rather for the rash and negligent driving of the driver of the Bolero car.

4. Stand of the Driver and the Owner of the vehicle bearing Registration No. WB-57/B-4589 (Truck) in question:-

The driver and the owner of the truck contested the claims by filing written statements. Over and above usual plea, a stand was taken that the opposite party No. 3 (driver) was not driving the vehicle in rash and negligent manner and therefore, the opposite party No. 2 (owner) is not liable to pay compensation. They further contended that as the offending vehicle was duly insured with the opposite party No. 1(a) and as the driver was having valid driving license at the time of incident, in the event, it was held that the claimants are entitled for compensation, the same need to be paid by the Insurance Company.

5. The Issues:-

The learned Tribunal below framed the following issues for determination:-

1. Whether the claimants’ son Dhurjyoti Baruah died in motor vehicle accident occurred on 16.01.2015 at Hapachara due to rash and negligent of the driver of vehicle No. AS-19/G-4224 or WB-57/B-4589?

2. Whether the claimants are entitled to get compensation if so, to what extent and by whom it is payable?

6. The Evidences:-

The claimants examined three witnesses, namely: Sri Jibendra Narayan Baruah as PW-1, Sri Rohan Baruah as PW-2. PW-2 was traveling in the vehicle (Bolero) and also got injured in the accident and one Akhtar Ali as PW-3 who claimed to be an independent eye witness to the accident and was a bye-passer who was travelling in a bi-cycle by the said of National Highway 31 when the accident occurred.

The claimants also exhibited certain documents such as Police Report (Exhibit-1), certified copy of Ajahar/FIR (Exhibit-2), MVI Report (Exhibit-3), Seizure List (Exhibit-4), Post Mortem Report of deceased (Exhibit-5) and Copy of Birth certificate of the deceased (compared with original) (Exhibit-6).

The Ins