The court upheld the principle of liability in a motor vehicle accident and the assessment of compensation based on legal principles.

Heard learned counsel, Mr. K. Bhattacharjee for the appellant Oriental Insurance Company Ltd., learned counsel, Mr. N. Choudhury for respondent Nos.1 and 2, learned counsel, Mr. P.S. Roy for respondent No.3 and learned counsel, Mr. A. Gon Choudhury for respondent No.5. There is no representation on behalf of respondent No.4.

2. Dilip Debnath, husband of respondent No.1 and father of respondent No.2(hereinafter mentioned as the claimant petitioners) died due to a motor vehicle accident occurred on 21.06.2010.

The case of the claimant petitioners in short is that Dilip Debnath was riding a motorbike bearing No. TR01C6550 while his wife, the claimant petitioner No.1 was on the pillion and were on way to Chesrimile and at that time the offending vehicle bearing No. TR01K1552 (TATA ACE) coming from northern direction dashed the motorbike and as a result Dilip Debnath and his wife sustained severe injuries and Dilip Debnath subsequently died.

The claimant petitioners being the wife and minor son of the deceased filed the claim case before the tribunal claiming compensation of Rs. 1,00,000,01/-. The allegation was made that for the rash and negligent driving of TR01K1552 (TATA ACE) the accident had occurred and as a result Dilip Debnath died.

In the tribunal, the owner of the alleged offending vehicle was made respondent No.1 and the appellant, being the insurer of the alleged offending vehicle was made respondent No.2. The New India Assurance Company Ltd., insurer of the motorbike was also made respondent No.3.

3. Respondent No.1i.e.the owner of the vehicle submitted written statement denying rash and negligent driving and alleged that the accident occurred for rash and negligent riding of the motorbike but adduced no evidence in support of the pleading.

The appellant Insurance Company initially did not submit any written statement and so hearing was directed exparte by an order dated 15.12.2011 passed by the tribunal but subsequently on 20.07.2012 the appellant Insurance company filed a petition to set aside the order of exparte hearing and also submitted written statement.

By order passed on 20.07.2012 the order of exparte hearing as was passed against the appellant Insurance company was vacated and the written statement was accepted. The appellant Insurance company did not adduce any evidence.

A petition under Section 170 of the M.V. Act was filed by the appellant Insurance company to take all defence but no order was passed by the tribunal. So, it appears that the petition filed under Section 170 was not insisted by the appellant Insurance company. Since the appellant Insurance company was not allowed to take all defence and since the owner of the vehicle appeared and submitted their written statement, the appellant Insurance company at that stage cannot take the defence beyond what has been prescribed under Section 149 of the M.V. Act.

4. Learned counsel, Mr. Bhattacharjee emphatically submitted that the case ought to be of a contributory negligence but the tribunal has decided in a one-sided manner and held the vehicle insured with the appellant Insurance company responsible for the accident.

5. I have gone through the evidence on record. It appears, the claimant petitioner No.1 is an eyewitness of the accident and she narrated the fact of accident which shows that the TATA ACE vehicle insured with the appellant Insurance company was the offending vehicle and her evidence has not been discarded in any manner. The police record has been exhibited though by itself it is not evidence but since it is exhibited it shows that charge sheet was filed against the driver of the offending vehicle i.e. TR01K1552 which was insured with the appellant Insurance company. So, what is insisted by learned counsel, Mr. Bhattacharjee to say that the case ought to be one of contributory negligence cannot be accepted, even on fact.

6. Regarding income of the deceased, as I find the tribunal has taken into account the annual incentive the pe