The claimant is entitled to compensation under Section 166 of the MV Act when the driver is a 'tortfeasor' driving the vehicle rashly and negligently.

JUDGMENT :

The insurance company has preferred an appeal against the judgment and order, dated 13.09.2012 in MAC Case No.182/2004 passed by the learned Additional District Judge FTC No.2/Member, MACT, Kamrup, Guwahati.

2. This appeal has been filed on the ground that the learned Additional District Judge FTC No.2/ Member, MACT Kamrup did not take into consideration the following facts while directing the appellant insurance company to pay the awarded amount with a liberty to recover the same from the owner of the vehicle:

i) The deceased who was driving the vehicle insured by the appellant was not the third party;

ii) The driving licence of the victim driver had expired about four years back resulting in violation of policy conditions;

iii) Although the claim petition was filed under Section 163 A of the MV Act as per which the maximum income that can be considered is Rs.40,000/- per year but the income was considered by the tribunal as Rs.94392/- resulting in violation of statutory provisions;

iv) The fact that the claimant was given employment by the owner of the vehicle after death of his father was not considered by the learned Member, MACT. Hence, the claimant/respondent No.1 was not considered as dependant while assessing compensation.

3. According to learned counsel for the appellant, the person driving the vehicle is not a third party and therefore the Member, MACT ought not have taken recourse to the remedy pay and recovery.

4. It is argued by learned counsel for the appellant that the Member, MACT ought to have considered that the owner of the vehicle which is a government organisation, had a duty to check the validity of licence of the driver of the vehicle before allowing him to drive the same. Under the facts, the Member, MACT ought to have directed the owner of the vehicle which is a government organisation to satisfy the award instead of directing the appellant insurer to initially satisfy the award of the tribunal with liberty to recover the same from the owner of the vehicle.

5. It is pertinent to say that none appeared for the respondents’ side. Though notice has been served through paper publication in respect of the respondent No. 5, but none appears to represent the respondent No.5. It also appears that earlier one Ms. R.Bora, Advocate was represented on behalf of respondent Nos. 1 to 4. However, none appeared on the date of hearing. As the matter is pending since 2014, no further time is allowed to wait for some more days to argue the matter on behalf of the respondents. Judgment is delivered accordingly on merit on the basis of the documents available in the record.

6. The case of the claimant is that on the date of accident i.e. 04.03.2004, while the deceased was driving a Tata Sumo vehicle bearing No. DL-3C-AA-5684 from New Delhi to Guwahati, had met with an accident near Janpad, Sitapur under Athariya P.S. in Uttar Pradesh. Due to development of some mechanical snag in the vehicle, the driver had lost control over the vehicle and hit a road side tree. Due to the alleged accident, the driver of the vehicle sustained grievous injuries on his head and other parts of his body. He was immediately admitted in the King George Medical College Hospital in Lucknow. The deceased was the sole earning member of his family, consisting of his wife, two sons and one minor daughter. The deceased was employed as a driver in Kendriya Hindi Sansthan, Guwahati Centre and he was earning Rs.8826/- per month as his salary.

7. The learned counsel for the appellant contended that in a petition under Section 166 of the MV Act, 1988, the entire responsibility lies with the respondent to prove the factum of rash and negligent driving on the part of the driver of the vehicle in accident. But in the instant case, the petition is not maintainable as the deceased himself was driving the vehicle and no other vehicle was involved in the accident. The accident was entirely the outcome of the rash and negligent driving of the deceased which led to