JUDGMENT :

Heard Mr. S. Dutta, learned senior counsel for the appellant/United India Insurance Company Ltd. Also heard Mr. A. Mobaraque, learned counsel for the respondents No.1 & 3 and Ms. B. Choudhury, learned counsel for the respondents No.4(a) to 4.8.

2. This appeal under Section 173 of the Motor Vehicles Act, 1988, has been filed by the appellant/United India Insurance Company Ltd., challenging the judgment and award dated 26.02.2002, passed by the learned Member, Motor Accident Claims Tribunal, Nalbari, in MAC Case No.25/1992, whereby an amount of Rs.2,00,000/-(Rupees Two lakhs only), have been awarded as a compensation to be paid to the claimants, who are the respondents No.1 and 3 herein, in equal proportion by the appellant/Insurance Company as well as the respondent No.4, the owner of the offending vehicle, who is now represented by the legal heirs.

3. The facts leading to filing of the present appeal, briefly stated, are as follows:

The respondents No.1, 2 and 3 as claimants had filed a claim petition under Section 166 of the Motor Vehicles Act, registered as MAC Case No.25/1992, before the learned Member, Motor Accident Claims Tribunal, Nalbari, stating that on 18.12.1991, while the driver Shri Khitish Das, the respondent No.5 herein, of bus bearing registration No.ASU-4081 was plying the bus from Chamata side towards Nalbari town and when the bus arrived near Chamata P.H.C., due to rash and negligent driving, the deceased, late Dipak Das, who was the handiman of the bus fell down and the rear wheels of the left side of the bus ran over the deceased who died on the spot. The claimants in the claim petition filed, stated that the deceased handiman was aged about 20 years, whose monthly income was Rs.1500/-per month and the claimants, who are the brothers and sister of the deceased were dependent on the income of the deceased, and therefore, a sum of Rs.2 lac was claimed as a compensation.

4. The appellant/Insurance Company, the opposite party No.3 in the claim petition, contested the claim petition by filing a written statement, stating that the claim petition is bad for non-joinder of necessary parties, that the case is bad for waiver, estoppel, acquiescence, etc., and therefore, the claimants are not legally entitled to the claimed made in the claim petition.

5. The appellant/Insurance Company, the opposite party No.3 in the claim petition is stated to have filed an additional written statement, wherein a stand was taken that at the time the accident took place, there was no insurance coverage of the offending vehicle, which, however, appears to have not been taken into consideration by the learned Tribunal as the same has not been discussed in the impugned judgment and award.

6. The owner of the offending vehicle, the respondent No.4 herein, who was also the respondent No.4 in the claim petition did not contest the claim petition before the learned Tribunal.

7. On the basis of the rival pleadings filed by the parties, the learned Tribunal had framed 2(two) issues for determination, which are as under :

(i) Whether the claimant is entitled to get any compensation and if so, to what extent and against whom?

(ii) What other relief or reliefs the claimant is entitled to?

8. In support of the claim petition, the claimants had examined 2(two) witnesses.

P.W. No.1 is Shri Tilok Das, who is one of the brother of the deceased and the P.W. No.2 is Nirmal Das, who was a co-passenger, travelling in the same bus when the accident took place, therefore, an eye witness.

P.W. No.1 had deposed before the learned Tribunal that the deceased was his younger brother, who died on a road traffic accident on 18.12.1991. He also stated that when the bus took a turn, the deceased was thrown over and was ran over by the left side of rear wheels of the said bus.

P.W. No.2 had deposed before the learned Tribunal that he was travelling on the date of accident in the bus. The name of the bus was ‘Jaya’. He stated that in the month of December 1991, while he