- (1.) The victim Rabindra Nath Mondal was forty years old. He was working in the office of the Superintendent, Government Railway Police earning Rs.7720/- per month. He met with an accident on November 5, 2002 when he received multiple injuries and succumbed to death on the spot. As per the complaint motor vehicle WP-03-7740 caused the accident. The vehicle was insured with the United India Insurance Company Limited. The policy was valid at the time of accident. The widow, two sons and the aged mother applied for compensation for rupees ten lacs along with interest in terms of Section 171 of the Motor Vehicles Act, 1988. It was contended that the subject motor vehicle had been proceeding from Baruipur towards Sonarpur in a rash and negligent manner. The vehicle hit a motor cycle being driven by the deceased. Victim sustained multiple injuries and succumbed to the injury on the spot. The widow deposed as PW-1. Her evidence was corroborated by PW-2 who proved the income of the deceased. According to PW-3, an ocular witness, he was going to her sister's place when he saw the vehicle heating the motorbike causing death to the victim. On the strength of the above evidence the learned Tribunal considered the issue and allowed the claim application. The learned Judge awarded Rs.3,77,450/- in addition to interim compensation of Rs.50,000/- that the claimants had received. The learned Judge however observed that the Insurance Company would be obliged to pay compensation at the rate of fifty per cent. The learned Judge relied on a judgment of our Court in the case of Smt. Mita Gupta & Ors. VS- Oriental Insurance Company Ltd. & Ors., 2001 1 CalLJ 123. According to the learned Judge, since there was some manner of doubt as to how the accident had occurred the Insurance Company should not be foisted with liability beyond fifty per cent.
(2.) Mr.Krishanu Banik, learned counsel appearing for the appellant contended that in an accident occurred on the main thorough fare it would be too difficult for the claimants particularly in death case to prove the rash and negligent driving of the vehicle responsible for the same. In this regard he relied on the Apex Court decision in the case of Usha Rajkhowar & Ors. VS- Paramount Industries & Ors.,2002 2 TAC 11 Mr. Banik also relied upon the following decisions :- i) (Promod Kumar Rasikbai Jhaveri VS- K.K.T. & Ors., 2002 3 TAC 1) ii) (U.I. Comp. Ltd. VS- Babul Saini & Anr.,2002 2 TAC 239) iii) (M.N. Rajan & Ors. VS- Konali Khalid Haji & Anr., 2004 3 ACC 273) iv) (N.I. Assu, Comp. Ltd. VS- D.G. Y & Ors., 2005 3 ACC 483) v) (Sudhir Kumar Rana VS- surinder Singh & Ors., 2008 ACJ 1834)
(3.) Opposing the appeal Mr. Rajesh Singh learned counsel appearing for the Insurance Company submitted that the PW-3 the so-called ocular witness was not reliable. He referred to his deposition where the witness could not specify the house number of his sister which he had been visiting. He prayed for dismissal of the appeal.;