JUDGMENT & ORDER :

1. Heard Mr. G. Jalan, learned counsel for the appellant. Also heard Mr. R. K. Bhatra, learned counsel for the respondent No. 1,Insurance Company.

2. The present appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the Judgment and Award dated 18.12.2012, passed by the learned Member of Motor Accident Claims Tribunal, Kamrup at Guwahati in MAC Case No. 2962/2006 for enhancement of compensation.

3. The brief fact leading to filing of the present appeal as well as the projected claim can be summarised as follows:-

I. While on 08.07.2006 the deceased person was proceeding towards Gangotri from Haridwar in the offending bus bearing registration No. UA07/C-9232, due to rash and negligent driving, the bus fell into a river near Dharasu Band, as a result of which the husband of the claimant and her brother-in-law died. Accordingly, the claim petition was filed before the Tribunal.

II. The learned Tribunal below issued notice to the opposite parties i.e. the insurance company, the owner and the driver of the offending vehicle.

III. The owner of the offending vehicle filed written statement inter alia contending that the vehicle was insured with the New India Assurance Co. Ltd and if any liability arises, the company is liable to indemnify him.

IV. The driver of the offending vehicle did not participate in the proceeding and the claim case proceeded ex-parte against him.

V. The New India Assurance Co. Ltd. filed written statement and admitted that the vehicle at the relevant time was duly covered by policy of insurance. But the insurance company declined to accept the liability, if there was any violation of the terms and conditions of the policy and if the driver did not have a valid and effective license at the time of accident.

VI. The claimant examined some witnesses and examined exhibited Income Tax return of the deceased as individual and head of HUF.

VII. The insurance Company did not examine any witnesses, however, cross examined the witnesses of the claimant.

4. Findings of the learned Tribunal Below:

The tribunal held that the death was caused to the husband due to rash and negligent driving of the offending vehicle. It was also held that the vehicle was duly insured at the time of the accident and the driver was having a valid driving license. Therefore, the claimant is liable to be compensated by the insurance company.

5. Submissions of Mr. Jalan, learned counsel for the appellant:

Mr. Jalan, learned Counsel for the appellant submits:

I. The tribunal has committed serious error by not relying upon the income tax return. The deceased assess himself as income tax assessee and paid the income tax before travelling to the state of Uttarakhand where he met with an accident and died. The return was not filed at that point of time and it was subsequently filed. Mr Jalan, learned counsel for the appellant argues that it is beyond any doubt that the husband of the claimant was an income tax assessee and he has paid income tax. However, the learned tribunal has ignored such evidence in as much as such evidence even has not been discussed.

II. The further contention of Mr Jalan is that in view of the change of law, the claimant is also entitled for the benefits as mandated, in the cases of Pranay Sethi and Magma General Insurance Company Limited.

III. The learned counsel further argues that this court in case of Future Generali held that even in absence of any cross appeal, the respondent claimants are entitled for the benefits as mandated in Pranay Sethi and in Magma. Therefore, the claimant is also entitled for benefit against loss of estate and consortium in terms of the aforesaid judgements.

6. Per contra, Mr. R. K. Bhatra, learned counsel for the respondent No. 1/Insurance Company submits:

I. The learned Tribunal below has not committed any error of law or facts. The claimant herself claims the incom