Satyabrata Sinha, J. - (1.) This appeal under section HOD of the Motor Vehicles Act, 1939 is directed against an Award dated 30th September, 1988 passed by Sri A. Barua, Additional District Judge, Second Court, Burdwan Motor Accident Claims Tribunal, Burdwan, whereby and whereunder he awarded a sums of Rs. 1,18,000/-in favour of the applicant respondents towards compensation for the death of Damodar Behura caused in an accident on 7.2.76.
(2.) The fact that the appellant corporation is owner of Bus No. BHN 6166 and on the said date and at the relevant time the said Bus was being driven by Sri Mahendra Jha, D.W. 1 has not been denied or disputed. The case of the petitioners-respondents appears to be that the deceased was a contractor and on 7.2.76 which was a Saturday, he came to his place of work for distribution of wages to the workmen. Upon making payment, while he was proceeding towards Mython in his motor cycle bearing Registration No, WMJ 6979, the aforementioned Bus dashed the motor cycle from behind as a result whereof he died. The Oriental Fire and General Insurance Company Limited filed a written statement denying and disputing the alleged rashness and negligence on the part of the driver of the said Bus. The appellant however, in its written statement verified by one Sri S. Pravakaran, Managing Director of the appellant corporation, Inter alia, stated "This opposite party submits that the Bus No. BHN 6166 was running towards Mython and the deceased was also proceeding in the same direction and tried to overtake the bus which was running at a normal speed of about 20 KMPH. The deceased while trying to overtake dashed against a rock lying by the side of road near the site of the accident and died of injuries. It is absolutely false to say that the bus dashed against the motor cycle in which the deceased was travelling, The vehicle and its driver are falsely implicated in the case. It it submitted that the Motor Bike was found in condition which belies that the bus dashed against the Motor Cycle. After hitting rock, the deceased dashed against the site of its bus in the rear portion". It also stands admitted that a criminal case was instituted against the driver, D. W. 1, wherein he was acquitted. Before the tribunal below, two witnesses were examined on each side. The learned Tribunal below rightly discussed the evidence of P.W. 2, Kashi Nath Dutta, who is an eye-witness and that of Shri Mahendra Jha, D.W. 1, the driver of the bus and came to the conclusion that the accident took place as a result of rashness and negligence on the part of the driver, Shri Mahendra Jha and the petitioners-respondents were thus entitled to payment of compensation on account of the death caused to the said Damodar Behura.
(3.) Mr. R.C. Prasad, learned Counsel appearing on behalf of the appellant, has principally raised three contentions in support of this appeal. Firstly, it was submitted that keeping in view the fact that D.W. 1 was acquitted in the criminal case, no compensation could have been awarded as has been sought to be done in the impugned Award. The learned Counsel in support of his aforementioned contention relies on a decision of Smt. Sukhinder Anand v. Khaza, Vazir Ali (Minor) & Ors, reported in AIR 1994 AP 343. The learned Counsel next contended that evidence of P.W. 2 is not reliable at all and as the onus to prove the involvement of the vehicle in question in the aforementioned accident was on the petitioners and the said onus having not been discharged, the learned Trial Judge erred in passing the impugned judgment and Award. Lastly, the learned counsel contended that a bare perusal of the judgment and award passed by the learned Tribunal below would clearly go to show that he had approached the case on humanitarian consideration and awarded by way of chargeable dispensation. The learned Counsel has taken through the entire pleadings, the evidence on record and the judgment and submitted that the learned Tribunal erred in appreciating the evidence of witnesses examined on behalf of the parties and thus erred himself in passing the impugned judgment.;