IMPORTANT POINT
Both the deceased and the truck owner exhibited negligence, leading to a 75:25 liability split for compensation in a vehicular accident case.

JUDGMENT :

BUDI HABUNG, J.

Heard Mr. R.K. Bhatra assisted by Ms. A. Biyani, learned counsels for the appellant. No one appears on behalf of the respondents.

2. By an order dated 30.05.2022, this court made an observation that if the respondents remain absent, the matter shall proceed ex- parte against the respondents/claimants. This is an old case of 2011. About 14 years have gone by since filing of this appeal. Trial court record have received long back. Notice was duly received by the respondents. Earlier, they were represented by advocate by filing vakalatnama. However, the matter remained pending for non- representation of the respondents. This Court is of the opinion that the matter cannot be kept pending for an indefinite period for non- representation of the parties even after received of notice. According the matter was taken up for hearing.

3. The present appeal has been filed under Section 173 of the Motor Vehicle Act, 1988 , assailing the judgment and award dated 08.07.2009, passed by the learned Member, Motor Accident Claims Tribunal, Biswanath Chariali, Sonitpur, in MAC case No. 02/2008, awarding an amount of Rs. 14,05,000/- with 5% interest from the date of filing of the claim petition till payment.

4. The fact leading to the filing of this appeal in brief is that on 19.09.2007, one Mantosh Choudhuri, son of respondent no. 1, father of respondent no. 2 and husband of respondent no. 3 was proceeding to his father-in-law’s house at Bihpuria, by his motorcycle bearing registration No. AR-01-B/2464. While he reached near Madhabpur, one woman with a minor girl suddenly crossed the NH-52 from behind the standing truck. The truck was bearing Registration No. AS-01-B/0804,and it was parked at the middle of the road. At that moment the deceased Mantosh Choudhuri, in order to save the woman dashed against the said standing truck, due to which he died on the spot. It is the case of the claimants that there was no reflector, indicator or even a stone placed behind the truck to indicate its stationary position. The further case of the respondents/claimants is that,after the accident a case was registered vide Bihpuria PS case No. 249/07, under section 273/304(A) IPC. According to the claimants, the offending vehicle was duly insured with the appellant, National Insurance Co. Ltd. and it had the valid insurance coverage at the time of the accident. The contention of the claimants before the Tribunal was that the deceased was working as a school teacher and earned Rs. 8,056/- per month. The claimants, therefore, claimed Rs. 16,50,000/- as compensation on account of the death of the deceased Mantosh Choudhuri due to the vehicular accident.

5. The opposite party/appellant contested the case by filing written statement, and stated that the accident took place not because of the negligence of the offending vehicle, but because of contributory negligence of the deceased. The owner of the offending vehicle in his written statement stated that the vehicle was driven by his driver Rajib Kumar with valid driving license. The vehicle was returning from North Lakhimpur on 16.09.2007. However, on the way, the truck’s tyregot burst out on NH-52 near Dholpur. As a result, the vehicle was parked in the extreme left side of the NH-52. According to the opposite party, since the next day was Biswakarma Puja, they could not supply new tyre from Guwahati. Therefore, he instructed the driver to keep the vehicle safe on NH-52 with the handyman. It is further stated that the motorcyclist knocked a mile-post and lost his life. The further contention of the truck owner was that the vehicle was duly insured with the Insurance Company at the time of the accident.

6. Based on the pleadings of the parties, the learned Tribunal framed three issues:

(I) Whether the alleged accident occurred due to rash and negligent driving of the driver of the offendin