JUDGMENT :

1. Oriental Insurance Company, insurer of Alto car has preferred the instant appeal against the award of compensation passed in Compensation Case No. 70 of 2010 wherein compensation of Rs.4,51,000/- has been awarded under Section 166 of the MV Act in favour of the claimants for the death of Shankar Chowdhury in a motor vehicle accident when the Alto Car on which he was travelling bearing registration no. JH-06A-6902 met with accident with a stationary truck bearing registration no. WB-33-2468. The Tribunal recorded a finding of contributory negligence and awarded compensation against the insurer of both the vehicles in the ratio of 50% each.

2. The car was being driven by one Jayanta Bagchi at the time of accident who also sustained fatal injuries in the accident for which Compensation Case No.28/2010 was filed and has been disposed separately. The heirs of Jayanta Bachi have preferred a separate appeal being MA 138/13. Both these appeal have been heard together but will be disposed of by separate Judgment since they arise of Judgment and award in two separate cases.

3. The instant appeal has been preferred mainly on the following grounds :

I. As per the FIR, charge-sheet, claim application and the evidence of AW1, the accident took place due to fault on the part of the driver of the truck which was parked on the road without putting the tail light or blinkers on, but the Tribunal has returned a finding on Issue No.III of composite negligence holding the driver of both the vehicles equally liable for the accident was not tenable on fact.

II. The Insurance Company had specifically pleaded in their written statement that no premium had been paid by the insured for the passengers of the car. The policy obtained by the Insured Jayanta Bagchi was for “private car liability only policy Zone, which is an “Act policy”. Premium for third party liability as per act was Rs.670,’ premium for owner’s/driver’s personal accident Rs.100 and premium of legal liability for driver was Rs 25 had been paid. On bare reading of the insurance policy (Exhibit 8) of the Alto car shall reveal that the schedule of premium contains two columns: (1) A own damages B liability. Premium for column B – liability has been paid and Column A – own damage is completely blank. Which means that no premium for own damage has been paid. The “comprehensive policy” means coverage for own damage (column A) legal liability (column B). In the instant case, policy has been issued for Act only by taking premium for Third Party cover, owner/driver and paid driver. The Learned Tribunal had wrongly held the said policy as comprehensive policy and awarded against the appellant.

III. In the absence of premium received for the passengers/ occupants of the car, the status of the deceased was that of a gratuitous passenger and as per the judgment of Hon’ble Apex court reported in 2006 capital ACJ 1441, the Insurance Company is not liable to pay compensation.

4. The factum of accident is not in dispute. Maruti Alto Car bearing registration No.JH-06A-6902 crashed in the cold and foggy winter into the truck bearing registration No.WB-33-2468, regarding which Belda P.S. Case No.158/2009 was registered under Sections 279, 283, 304A/427/338 of the IPC against the driver of both the vehicles. In this accident three passengers including the driver of the Maturi Alto Car received fatal injuries and died on the spot. The dead persons were identified as (1) Jayanta Bagchi, S/o. Tapan Bagchi (2) Subhash Choudhary S/o Tarnikant Choudhary (3) Shankar Chowdhury, S/o. Tarnikant Choudhary (all dependants of Shankar Chowdhury) filed Compensation Case No.70/2010 under Section 166 of M.V. Act.

5. In the instant appeal mainly two questions need to be answered. Firstly, whether the finding of fact on composite negligence on part of both the vehicles is sustainable in the light of the evidence on r