DIPANKAR DATTA,J. - (1.) The death of Srikanta Ghorai (hereafter the victim) on January 7, 2005 as a result of a road accident on December 28, 2004 involving use of more than one motor vehicle led his widow, minor children and mother (hereafter the claimants) to approach the Motor Accident Claims Tribunal, 2nd Court, Tamluk by filing an application under Section 166 of the Motor Vehicles Act, 1988 (hereafter the Act). It was registered as M.A.C. Case No. 232 of 2006 (since renumbered M.A.C. Case No. 40 of 2011). It was pleaded in such application that the victim was travelling in a private car (WB-42F/6294), owned by one Tushar Kanti Das, when it was dashed by a dumper (WB-29/2803), owned by one Jamshed Ali, coming from the opposite direction at a very high speed. As a result of the collision, the victim suffered severe injuries on his person. He was immediately admitted in Tamluk Sub-divisional Hospital but for better treatment was later on shifted to a private hospital in Kolkata. However, after a few days, he succumbed to such injuries. The victim, it was further pleaded, was 37 years old on the date of death and while working as a 'mosaic mason' used to earn Rs. 150/- per day. The claimants also pleaded that he was the sole earning member of his family upon whom they were wholly dependent. National Insurance Co. Ltd., insurer of the private car (hereafter National) and ICICI Lombard General Insurance Co. Ltd., insurer of the dumper (hereafter ICICI) were arrayed as opposite parties in the claim application along with their respective owners. Both the insurance companies contested the claim application by filing written objections. While National claimed that the dumper (the bigger vehicle) was responsible for the accident and that ICICI should be held liable for compensation, ICICI disowned its liability on the ground that the dumper was not covered by any insurance policy issued by it. The tribunal made an award dated December 4, 2014, whereby it allowed the claim application. According to the tribunal, it "is a case of head on collision and naturally as per recent decision the liability should be fixed up to the heavy vehicle than the light vehicle. So from that angle if this case be considered, the liability would be upon the heavy vehicle". The tribunal further disbelieved the version of ICICI and held, on the basis of a cover note issued by it, that it was indeed liable to pay compensation. The claimants were held entitled to be compensated by ICICI in a sum of Rs. 6,19,000/- together with interest @ 6% per annum from the date of filing of the claim application till payment. The amount of compensation, so determined, was to be shared by the claimants in the proportion as specified in the award. Feeling aggrieved thereby, ICICI is in appeal before us.
(2.) Appearing in support of the appeal, Mr. Pahari, learned advocate has raised a solitary point. According to him, upon completion of investigation of the FIR that was registered immediately after the accident, the investigating officer filed a police report (charge-sheet) under Section 173(2) of the Code of Criminal Procedure and thereby, the drivers of the private car and the dumper were charged with commission of offence punishable under Sections 279/338/427/304A of the Indian Penal Code; hence, both being responsible for rash and negligent driving, the tribunal should have apportioned the liability between ICICI and National. He contended that in fastening the liability solely on ICICI, the tribunal committed serious illegality. Reliance was placed by him on the decisions reported in 2008 ACJ 1188 : Renukadevi H. v. Bangalore Metropolitan Transport Corporation , 2008 ACJ 1617 : Sri Krishna Vishweshwar Hegde v. General Manager, Karnataka State Road Transport Corporation , 2009 (2) T.A.C. 11 (S.C.) : Usha Rajkhowa v. Paramount Industries , and 2009 ACJ 2003 : Raj Rani v. Oriental Insurance Co. Ltd. He thus prayed for suitable modification of the award.
(3.) Mr. Mondal, learned advocate appearing for the claimants was called upon by us to place the decision referred to in the impugned award based whereon it took the view that the dumper being a heavier vehicle than the private car (the lighter one) that was involved in the accident, the insurer of such heavier vehicle is liable to bear compensation. He was frank in his submission that he could not lay his hands on any such decision.;