JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. S. Dutta, learned counsel for the appellant. Also heard Mr. R.K. Bhatra, learned counsel for the respondent No. 6 and Mr. B.K. Baruah, learned counsel for the claimant and respondent Nos. 1 and 2.

2. The present appeal is preferred by the Insurance Company under Section 173 of the Motor Vehicle Act, 1988 assailing the judgment and award dated 19.11.2012 passed by the learned Member, Motor Accident Claim Tribunal, Nagaon in MAC Case No. 43/2009.

3. The background facts:

(I) The respondent Nos. 1, 2 and 3 had preferred a motor vehicle claim petition before the learned Motor Accident Claim Tribunal, Nagaon, inter-alia alleging that Kamal Hazarika (husband of respondent No. 1, father of respondent No. 2 and son of respondent No. 3), died in a motor vehicular accident that took place on 05.12.2008.

(II) It is claimed that on 05.12.2008, while deceased Kamal Hazarika was proceeding on foot towards Nagaon and when reached Bheluguri, a vehicle bearing registration No. AS-02-E-1505 (Tipper) dashed said Kamal Hazarika and as a result of which, Kamal Hazarika died on the spot.

(III) It was also pleaded in the claim petition that the aforesaid vehicle rammed another vehicle bearing registration No. AS-02-E-1631 (Winger) and accordingly claims that due to rash and negligent driving of the vehicle No. AS-02 E-1505, said Kamal Hazarika died and claims an amount of Rs. 20,00,000/- as compensation.

(IV) In the aforesaid proceeding, the insurer, namely the Oriental Insurance Company of the vehicle bearing registration No. AS-02 E-1505 was arrayed as OP No. 3 and the insurer of the vehicle No. AS-02 E-1631 was arrayed as OP No. 4.

(V) The opposite party No. 3 took usual pleas and denied the involvement of the accident of the vehicle. No specific plea of composite negligence of both the vehicles were raised. The said insurance company denied the allegation that the accident took place due to rash and negligent driving of both the vehicles. However, the Oriental Insurance Company (O.P. No. 3) had not led any evidence in support of the aforesaid pleading.

(VI) The Bajaj Alliance General Insurance Company Ltd. (OP No. 4) also filed written statement and took a specific stand that the vehicle insured with them was not involved in the alleged accident and was not driven in rash and negligent manner and specifically pleaded that the offending vehicle bearing registration No. AS-02-E-1505 is solely negligent, being driven by its driver in a rash and negligent manner and knocked down the deceased Kamal Hazarika and therefore the liability, if any shall be saddled against the driver and owner of the said offending vehicle. However, this Insurance Company also did not lead any evidence in support of such pleading.

(VII) The claimant side to prove their case had adduced the claimant No. 1, wife of the deceased Kamal Hazarika as CW-1 and she reiterated the pleading made in the affidavit. She claimed that her husband had a monthly income of Rs. 5,000/- and in proof of such income she exhibited one document i.e. Income Certificate issued by Circle Officer, Samaguri, Nagaon. She also exhibited Accident Information report, the First Information Report, Charge-sheet, the Seizure list, certified copy of the GD Entry and also the Postmortem Report of her deceased husband.

(VIII) Both the Insurance Company cross-examined the said witness. However, the testimony of the said witness could not be shaken by the Insurance Company. In her cross-examination, she had reiterated that her husband was a cultivator and also having a Pan Shop and his income was Rs. 5,000/-. She also exhibited the income certificate and she denied the suggestion that accident did not take place due to the negligence of the Dumper (AS-02-E-1505). She denied the suggestion put by OP No. 3 that Oriental Insurance Company is not liable to pay compensation. During cross-examination on behalf of the Bajaj Alliance General Insurance Company Ltd. (OP No. 4), she deposed