JUDGMENT

B.N. MAHAPATRA, J. — The Insurance Company has preferred this appeal against the Judgment dated 18.07.2009 passed by the 1st Motor Accident Claims Tribunal, Dhenkanal in M.A.C. Case No.140 of 2002.

2.The claimants’ case in a nut shell before the Tribunal is that on 31.10.2001 at about 10 P.M. while deceased-Ajaya Barik was going towards Dhenkanal on his scooter bearing Registration No.DL/35/J/1773, at Dhumabati Deity’s temple located by the side of NH 42, a truck bearing Registration No.OAX 5859 being driven in a rash and negligent manner by its driver dashed against the scooter of the deceased from his back side. As a result of such accident, the deceased sustained serious injuries on his body and died at the spot. At the time of death, the deceased was 29 years old and was getting a sum of Rs.6,000/- (rupees six thousand) per month towards his salary.

Before the Tribunal, opposite party No.1-owner of the vehicle did not contest the case for which he was set ex parte. Opposite party No.2-Insurance Company, in its written statement inter alia stated that due to negligence of the deceased, the accident took place and the driver of the offending truck had no valid and effective Driving Licence at the time of such accident and therefore, the Insurer is not liable to indemnify the owner of the vehicle.

3.On the basis of the pleadings of the parties, the Tribunal has framed the following four issues:

(i)Whether due to the rash and negligent driving of the driver of the Truck, bearing Registration No.OAX 5859, the accident took place and in that accident, deceased Ajaya Barik succumbed to the injuries ?

(ii)Whether the petitioners are entitled to get any compensation? If so, what would be the extent ?

(iii)Whether all the opposite parties or any one of them is/are liable to pay compensation ?

(iv)To what relief, the petitioners are entitled ?

4.The claimants have examined one witness and produced fifteen documents which are marked as Exts. 1 to 15.

The Insurance Company has examined one Gyanranjan Das as a witness and produced the report of the Investigator, which is marked as Ext.A.

5.Taking both oral and documentary evidence into consideration, the Tribunal came to the conclusion that the documents filed and proved by the petitioners clearly supports their case and the driver of the offending vehicle is solely responsible for the accident resulting in death of the deceased.

Considering the age of the deceased, the Tribunal has applied multiplier 18. On the basis of the salary certificate (Ext.10), the Tribunal has determined the amount of compensation at Rs.6,42,240/-. The Tribunal further awarded Rs.2,000/- towards funeral expenses, Rs.2,500/- towards loss of estate and Rs.5,000/- towards loss of consortium and directed the Insurance Company to pay a sum of Rs.6,51,740/- along with interest @ 7% per annum from the date of filing of the claim application.

6.Mr. Goutam Mishra, learned counsel appearing for the Insurance Company submitted that the impugned award is illegal and arbitrary. Placing reliance upon the judgment of the apex court in the case of State of Haryana vs. Jasbir Kaur, (2003) 7 SCC 484, Mr. Mishra submitted that the award of compensation should not be a bonanza. There was no proper eyewitness in the present case and in absence of such evidence application filed under Section 166 of the Motor Vehicles Act, 1988 was liable to be dismissed. In support of his contention, Mr. Mishra relied upon a decision of Delhi High Court in the case of The New India Assurance Company Ltd. Vs. Smt. Bhupinder Kaur and Ors., II (2007) ACC 405. In view of the decision of the Apex Court in the case of The Oriental Insurance Co. Vs. Meena Variyal, 2007 (5) JT 65, the Tribunal should have asked the claimants to produce the best possible evidence, which has not been done by the said Tribunal. Since the driver was not impleaded as a party, the claim petition was not maintainable before the Tribunal. Neither the police officer nor the MVI was ex