DIPANKAR DATTA,J. - (1.) Aggrieved by rejection of their claim petition (filed on March 17, 2004 and registered as M.A.C. Case No. 55/148 of 2004) under section 163A of the Motor Vehicles Act, 1988 (hereafter the Act) by the Motor Accident Claims Tribunal, Burdwan (Fast Track 1st Court, Burdwan) vide award dated July 28, 2005, the claimants (widow, major son and minor son of the victim) have preferred this appeal under section 173 thereof.
(2.) The claim petition discloses that the victim on February 20, 2004 was, inter alia, an occupant of a maruti omni, bearing registration no. WB-54B/4464 (hereafter the maruti omni). While it was travelling towards Illambazar, near Beldanga village on the Panagarh-Illambazar road, within the jurisdiction of Kanksa Police Station in the district of Burdwan, there was a head-on collision with a dumper, bearing registration no. WB-37A/3302 (hereafter the dumper). The dumper, allegedly, was being driven rashly and negligently and came from the opposite direction in high speed. As a result thereof, the maruti omni was severely damaged and three occupants thereof, including the victim, succumbed to their injuries after being shifted to nearby hospitals. The claimants pleaded that the victim, aged about 58 years, was a labourer earning Rs.1,800/- per month. It was also pleaded that since the victim was the occupant of the maruti omni, which was involved in the accident resulting in the victim's death, the claimants were entitled to compensation of Rs.1,00,000/- to be paid by the owner and the insurer thereof, either jointly or severally. The owner of the maruti omni was impleaded as the first respondent in the claim petition while the owner of the dumper was impleaded as the second respondent therein. National Insurance Company Ltd., the insurer of both the maruti omni as well as the dumper, was impleaded as the third respondent.
(3.) While the owner of the maruti omni did not contest the claim, the owner of the dumper filed a written statement but did not turn up subsequently for contest. The claim was vehemently contested by the insurer upon obtaining leave in terms of section 170 of the Act. In defence, it was pleaded in the written statement that the victim was more than 60 years old at the time of accident and, therefore, could not have been employed as a labourer. It was also pleaded that he had no income and that he was not travelling in the maruti omni, as claimed.;