Mohammad Rafiq, J. - (1.) This appeal has been filed by the claimant-appellants aggrieved by the award of the Motor Accident Claims Tribunal Behror, District Alwar dated 5/1/2001 whereby, claim petition filed by the claimant-appellants was dismissed. The Tribunal dismissed the claim petition holding that the deceased himself was responsible for the accident.
(2.) Learned counsel for the appellants citing Section 43 of the Evidence Act, 1872 has argued that the findings recorded by the learned Tribunal in other two claim petitions could not have been read against the claimants in the present case to hold that deceased-Girdharilal owner of Truck No.RNG-3479 and who was driving the truck himself at the relevant time was negligent and not the driver of another Truck No.RJ.02-1696. It was argued that mere fact that in the first information report that was lodged by Amar Singh, it was stated that deceased-Girdhari Lal was said to be negligent and responsible for the accident by driving the vehicle rashly and negligently and conclusion to that effect given by the Tribunal could not be a reason to hold the deceased himself negligent and to reject the claim petition on that basis. Learned counsel argued that statement of the witnesses given in those two claim petitions namely; Claim Case Nos.76/1994 and 77/1994 decided by the same Tribunal could not be read against the appellants because in one of the claim petitions i.e. in Claim Case No.77/1994, the award was passed on the basis of compromise and secondly in Claim Case No.76/1994, the Insurance Company failed to adduce any evidence and on that basis, deceased-driver of Truck No.RNG-3479 Girdharilal was held negligent. It was argued that at the maximum, it can be said to be a case of composite negligence and not total negligence on the part of Girdharilal. Learned counsel argued that statements of three eye-witnesses, whose statements were recorded in the present case could not be straightway made a basis to hold total negligence on the part of husband of claimant-appellant No.1 and father of claimant-appellants No.2 to 6. 2).
(3.) Although, no one has put in appearance for the insurance company, however on the basis of analysis of the record and the award, it has been found by this court that in claim petitions, no definite finding was given by the learned Tribunal to hold that total negligence on the part of Girdharilal, driver of Truck No.RNG-3479. The findings of the learned Tribunal in Claim case No.77/1994 decided vide award dated 15/4/1998 do not found anywhere because the award was passed on the basis of compromise. Although those claim petitions were arising out of the injury cases. In Claim Petition No.76/1994 decided vide award dated 7/9/2000 although a finding on Issue No.1 has been recorded by the learned Tribunal on the basis of evidence adduced by the claimants but the Tribunal has held that no evidence in rebuttal was given by the insurance company. In that case, insurance company of both the vehicles were impleaded as party but neither of the insurance companies adduced any evidence.;