A claim under Section 166 of the Motor Vehicles Act is maintainable if negligence cannot be attributed to the deceased rider, allowing for just compensation.

1. The present appeal has been preferred by the claimant against the judgment and award dated 6.8.2015 passed by the learned Additional District Judge - cum - Judge, Motor Accidents Claims Tribunal, 2nd Court, Balurghat, Dakshin Dinajpur (hereinafter called as 'the learned Tribunal Judge') in MAC Case No. 168 of 2011, under S.163A of the Motor Vehicles Act, 1988.

2. The facts:
"The victim boy - Saiful Mondal alias Chhayful Mondal, since deceased, was the son of the present claimant / petitioner, namely, Samchhun Bibi and that at the time of the accident the victim was 20 years old and was a businessman and that on 11.10.2011 at about 1830 hrs the victim was coming from Gangarampur side towards his house riding a motor cycle bearing No. WB - 62B / 4256 (motor cycle) and when he reached at Chalun, he lost his control over the motor cycle due to bad condition of the road and victim capsized on the road with his motor cycle and due to said accident he got seriously injured and was removed to Balurghat District Hospital but there the victim Saiful Mondal alias Chhayful Mondal died on the next day."

3. OP No. 1, Najrul Islam Mondal (father of the victim), was the owner of the offending vehicle at the relevant time, which was insured with TATA AIG General Ins. Co. Ltd., OP No. 2 in this case.

4. The owner of the offending vehicle bearing No. WB - 62B / 4256 (motor cycle) has appeared in this case and filed WO but subsequently did not contest the case and as a result the instant case has been heard ex parte against said owner of the vehicle (OP No. 1).

5. The OP No. 2 / Tata AIG General Ins. Co. Ltd. has contested this case and has filed written objection, wherein the said OP has denied all the materials allegations made by the claimant / petitioner in the instant case.

6. The claimant / appellant (mother of the victim) examined herself as PW 1 and produced relevant documents being F.I.R., seizure list, final report, driving licence, school transfer certificate, PM report, insurance policy, etc., which were marked as Exhs. 1 to 12.

7. The insurance company / respondent No. 1 did not adduce any evidence.

8. The Tribunal finally passed the following order:
"MAC Case No. 168 of 2011
Dated: 6.8.2015
In New India Assurance Co. Ltd. v. Sadanand Mukhi , 2009 ACJ 998 SC, the Hon'ble Apex Court held that:
'(17) Keeping in view the aforementioned parliamentary object, let us consider the fact of the present case so as to consider as to whether the insurer is liable to pay the amount of compensation in relation to the accident occurred by use of the vehicle which was being driven by the son of the insured?
(18) We may, for the said purpose, notice certain decisions covering different categories of the claims.
In the case of United India Insurance Co. Ltd. v. Tilak Singh, 2006 ACJ 1441 SC, this court considered the provisions of Motor Vehicles Act, 1939 as also 1988 Act and inter alia, opined that insurance company would have no liability towards the injuries suffered by the deceased who was a pillion rider, as the insurance policy was a statutory policy which did not cover the gratuitous passenger.'
The Hon'ble Supreme Court has further observed that:
'(18). ...In Oriental Insurance Co. Ltd. v. Jhuma Saha, 2007 ACJ 818 SC, it was held:
"(10) The deceased was the owner of the vehicle. For the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving. The question which arises for consideration is that the deceased himself being negligent, the claim application under S.166 of the Motor Vehicles Act, 1988 would be maintainable.
(11) Liability of the insurance company is to the extent of indemnification of the i