Appellants filed a claim petition seeking compensation of Rs. 2,00,000/- from respondents alleging that their son-Ayub Basha (the deceased), aged 24 years earning Rs. 1600/- p.m., a van driver, died as a result of an accident, as the van being driven by him was dashed against by a lorry belonging to 151 respondent and insured with 2nd respondent, due to the rash and negligent driving of its driver.

2. 1st respondent chose to remain ex parte both in the Tribunal and in this Court.

3. 2nd respondent filed its counter putting the appellants to proof of the averments in the petition.

4. In support of their case, 1st appellant examined himself as P.W.1 and another witness as P.W.2 and marked Exs.A-1 to A-4. No evidence either oral or documentary adduced to behalf of 2nd respondent.

5. Holding that the accident occurred due to 50% negligence of the deceased and 50% negligence of the driver of the lorry, the Tribunal awarded Rs. 40,000/- as compensation to the appellants. Dissatisfied with the compensation awarded to them, the claimants preferred this appeal.

6. The points for consideration:

1. Due to whose negligence did the accident occur?

2. To what compensation are the appellants entitled to?

7. Point No.1:

Since P.W.1, father of the deceased, was not an eye-witness to the accident his evidence is not relevant for deciding this point. The evidence of P.W.2, an injured in the accident, is that he is a clerk of the firm in which the deceased was employed and that he and the deceased after unloading eggs at Madras were returning to their headquarters and when they reached near Sri Perambadur, a lorry came in the opposite direction and dashed against their van resulting in the death of the deceased on the spot and injuries to him and that he also filed a claim petition seeking compensation. During cross-examination, he stated that the accident occurred on a wide national high way and that he saw the lorry when it was at a distance of 40 feet and admitted that he, in the claim petition filed by him, alleged that the accident occurred due to negligence of drivers of both the vehicles and sought compensation from the owners and insurer of the vehicles involved in the accident.

8. The contention of the learned counsel for the appellants is that the Tribunal erred in holding that the accident occurred due to negligent driving of the deceased also though there is no such plea and though 1st respondent, the owner of the lorry chose to remain ex parte, and also was in error in drawing an inference on the basis of the evidence of. P.W.2 ignoring Ex.A-3, charge sheet, which clearly states that the driver of the lorry was responsible for the accident. I am not able to agree with the said contention of the learned counsel for the appellants, because negligence of person cannot be judged merely on the ground that he was charge-sheeted. So unless there is evidence to show that the accident occurred due to the negligence of the driver of the lorry, merely on the strength of the averments made in the charge sheet, it cannot be said that the accident occurred due to rash and negligent driving of the driver of the lorry. The evidence of P. W.2 shows that the road on the scene of accident is a wide road and that lorry coming in the opposite direction was seen when it was about 40 to 60 ft. away from the vehicle in which he was travelling. Had the deceased been cautious and careful he would have easily averted the accident. Head on collision between two vehicles usually occurs when drivers of both the vehicles are negligent. Even if one of the drivers is a little careful, there would be possibility to avert the accident. In the claim petition filed by him, P.W.2 alleged that the accident occurred due to the negligence of drivers of both the vehicles. Therefore, his statement that the accident occurred due to the negligence of the lorry driver cannot be believed and accepted. So I find no grounds to interfere with the finding of the Tribunal that the accident