Pratap Krishna Lohra, J. - (1.) APPELLANT -claimants have filed this appeal under Section 173 of Motor Vehicles Act, 1988 (for short, 'the Act of 1988') for assailing the impugned judgment and award dated 20.11.1998 passed by the Motor Accident Claims Tribunal, Barmer (for short, 'the learned Tribunal') whereby their Claim Petition No. 157/1997 under Section 166 of the Act of 1988 is dismissed by the learned Tribunal.
(2.) SUCCINCTLY stated, the facts of the case are that on 19.03.1997 when deceased -Kutala Ram was travelling in truck No. RJ -04/G -0781 as Khalasi on the route of Pilibanga to Suratgarh at about 8.30 P.M., the truck dashed with a Jonga Jeep No. RJ -21 -C -0076. The accident occurred due to rash and negligent driving of the truck by its driver Prema Ram and due to its high speed, the driver lost control on the vehicle and hit Jonga from behind and thereafter the truck fell down to a nearby deep splash area and submerged into water up to its bumper. The impact of accident was so severe that deceased Kutla Ram suffered grave and serious injuries on his head and eventually succumbed to the injuries on the spot. The accident was immediately reported to Police Station, Suratgarh. On the strength of these averments, the appellant -claimants quantified the total amount of compensation to the tune of Rs. 22 Lacs in their claim petition by asserting that deceased was employed as a Khalasi earning monthly wages of Rs. 3,000/ - and at the time of his death he was 45 years old. Under different heads, the total amount of compensation is worked out. On behalf of respondents No. 1 & 2, reply to the claim petition is submitted. The reply to the claim petition is of bare denial about some of the factual aspects but while adverting to the cause of accident, the respondents have pleaded that accident has occurred not due to negligence of the driver of the truck but on account of some negligence or overt act of deceased Kutla Ram. The facts regarding quantum of compensation were also refuted. The Insurer has also submitted its reply almost on the same lines as that of the reply of the other respondents. The respondent -Insurance Company has denied that deceased Kutla Ram was working as Khalasi with the offending vehicle. As regards the factum of insurance of the offending vehicle, the reply of the Insurance Company is evasive inasmuch as neither it has admitted the factum of insurance, nor it has denied the same. The amount of compensation is also seriously disputed. Some other legal objections were also incorporated in the pleadings.
(3.) ON the basis of pleadings of rival parties, the learned Tribunal settled three issues for determination. The appellant -claimants examined three witnesses, and on behalf of respondents one witness appeared and testified on oath. The learned Tribunal, while adjudicating the claim decided Issue No. 1 regarding rash and negligent driving of the truck by its driver against the appellants and in favour of respondents. While recording its finding, the learned Tribunal has disbelieved the version of the alleged eye witness, and has also observed that as the first informant, who has lodged FIR, has not appeared in the witness box, contents of the FIR cannot be relied upon. In totality, the learned Tribunal has found that there is no proof about the fact that accident has occurred due to rash and negligent driving of the truck by its driver. While taking note of the finding on Issue No. 1, no adjudication as such is made by learned Tribunal on Issue No. 2 regarding quantum of compensation and the same is also decided against the appellants. Adverting to Issue No. 3, the learned Tribunal on evaluation of evidence and other materials available on record has found that at the time of accident offending vehicle truck was insured with the respondent -Insurance Company, and accordingly, the said issue is decided in favour of appellant -claimants.;