The weight of documentary evidence and the consequence of the claimant's non-examination are crucial in establishing the claim of death in a motor accident.

JUDGMENT :

B.P. ROUTRAY, J.

1. Both the appeals have been filed by the claimant against respective judgments dated 28th February, 2011 of learned ADJ-cum-MACT, Balangir in MAC No. 135/67 of 2008-10 and MAC No. 134/66 of 2008-10.

2. Present Appellant namely Anadi Tandi filed two claim applications concerning death of his wife Nira Tandi and minor daughter Uma Tandi. It is stated that on 10th August, 2008 when the deceased persons were returning to their village in the offending Jeep bearing registration number OR-17-A-6355, on the way on a down bridge over river Suktel which was swollen with flood water, the vehicle washed away in the flood water with its occupants including both the deceased persons. Rescue operation was undertaken and the F.I.R. lodged on the next day. Three dead bodies could be recovered other than the bodies of Nira Tandi and Uma Tandi, the alleged deceased persons. Police submitted the charge-sheet stating that 21 occupants were there in the offending Jeep and due to the accident 3 persons died as well as 12 persons were injured. There was no mention of death of Nira Tandi or Uma Tandi in the police report.

3. The claimant examined 5 witnesses namely, Hada Tandi, Parvati Tandi, Kunti Jal, Kasturi Tandi and Sahadev Tandi as PW-1 to PW-5. But the claimant did not choose to examine himself as a witness.

4. The owner contested the case. The owner though admitted the accident but did not say anything about death of Nira Tandi and Uma Tandi in the accident, either denying or admitting the same. He took the stand that since the offending vehicle was validly insured on the date of accident, the insurer is liable to indemnify him for the compensation amount.

The insurer also contested the claim by taking the stand that the policy of insurance in respect of the offending Jeep was for ‘Act Liability’ only and as the occupants of the vehicle at the time of accident were gratis passengers where the vehicle is a private one, the insurer is not liable to indemnify the owner for the compensation. However, the insurer did not admit death of the alleged deceased persons in the accident.

5. Learned Tribunal upon analysis of evidence brought on record, disbelieved the fact of death of the alleged deceased persons in the accident and resultantly passed nil award dismissing both the claim applications.

6. It is submitted on behalf of the claimant that PW-3 and PW-5 who are the eye witnesses of the accident being occupants of the offending vehicle at the time of accident have stated presence of Nira Tandi and Uma Tandi in the vehicle along with them during that illfated event. So based on the evidence of such eye-witnesses there should not be any doubt regarding death of those two deceased persons in the accident even in absence of police report.

7. Thus the seminal issue involved in the dispute is that, whether Nira Tandi and Uma Tandi died due to the accident concerning the offending vehicle. In this regard, to see the evidence brought on record in support of the same, it is the oral statement of PWs. 3 and 5 only. They have stated to the effect that Nira Tandi and Uma Tandi were the occupants of the offending vehicle along with others and all were returning from Padmapur to their village Sanuden on that day. When the vehicle was on the down bridge over river Suktel, the entire vehicle with the occupants drowned in the flush of water. The dead bodies of Nira Tandi and Uma Tandi could not be traced out despite all efforts put by the rescue team and local people. It is also stated by these witnesses that since the date of accident nobody has seen Nira Tandi and Uma Tandi till date.

The evidence of PWs. 3 and 5 are found supporting the claim of the Appellant regarding death of Nira Tandi and Uma Tandi. Here one thing is to be noticed that the claimant did not examine himself as a witness to support the death of his wife and daughter in the accident. This makes the conduct of the claimant suspicious because he being the husband and father o