M. P. CHINNAPPA, J.

( 1 ) BEING aggrieved by the judgment and award dated 29-10-1986 passed by the Motor Accidents Claims Tribunal and district Judge, Dharwad, in M. V. C. No. 312 of 1983 dismissing the claim petition, the appellants have preferred this appeal.

( 2 ) THE brief facts leading to this appeal are the deceased dhanikumar was working as the driver of the vehicle bearing no. TNC 4795 owned by one Loganathan-respondent 1. On 29-1-1983 the said Dhanikumar had taken the lorry from davangere to Ranebennur and after unloading certain goods it was reloaded with cattle feed in the said truck. He left ranebennur at about 7-15 p. m. and he was driving his vehicle towards Davangere. When he reached Makanur cross, the vehicle dashed against a stationary truck bearing No. MHF 1336 owned by the 3rd respondent, M. H. Rajpal and insured with the 5th respondent herein. As a result of this impact, the driver dhanikumar succumbed to the injuries. Therefore, the legal representatives of the deceased Dhanikumar lodged a claim under Section 110-A of the Motor Vehicles Act.

( 3 ) THE 2nd respondent with whom the lorry No. TNC 4795 was in sured and the 5th respondent with whom the lorry No. MHF 1336 was insured resisted the claim petition on various grounds. However, the owners of these two lorries have not filed any written statement.

( 4 ) THE learned Tribunal framed as many as 6 issues and held that the appellants proved that Dhanikumar had died in a truck accident on 29-1-1983 on P. B. Road near Makanur cross. However they failed to establish that the accident was due to the negligent act of the truck bearing No. MHF 1336 and they are not entitled for any compensation as claimed by them, for the reasons stated in the judgment. The Tribunal also held that the petitioner is not bad for non-joinder of necessary parties and the insurance coverage is not given. This finding of the learned tribunal has been assailed by the appellants.

( 5 ) HEARD the learned Counsel for the appellants and the learned Counsel for the respondents.

( 6 ) THE learned Counsel for the appellant at the very outset submitted that the driver of the lorry bearing No. MHF 1336 had parked the lorry by the side of the road without putting on the parking lights and also the stones surrounding the lorry indicating the parking of the lorry by the side of the road. This is an act of negligence on the part of the driver of the said lorry as he had not taken necessary precaution. Due to darkness the deceased Dhaniraj Jain could not sight this lorry and as a result the accident occurred. Therefore, he submitted that the finding of the Tribunal that the appellants have failed to prove the actionable negligence on the part of the other lorry is incorrect. He also submitted, in the alternative if the total negligence cannot be attributed to this lorry driver, at least it has to be held that the parking of the lorry without proper precautions contributed to the negligence to a certain extent and can safely be fixed at 50%.

( 7 ) PER contra, the learned Counsel for the respondents submitted that there is no evidence to show that the accident occurred because of the parking of the lorry. The finding of the tribunal clearly indicates that there was sufficient space available on the road and that the lorry was parked on the 'kucha' road leaving sufficient space for the other lorries to move on. In those circumstances, no negligence can be attributed to the driver of this lorry.

( 8 ) THE 1st appellant was examined as P. W. 1. Admittedly she was not in the lorry and she was not aware as to how the accident had occurred. P. W. 2 is the person who claims to be in the lorry on that particular day and he is a witness to the occurrence. However, the learned Tribunal has not accepted his evidence solely on the ground that he was not working in the lorry, nor had he any reason to travel in that lorry on that particular day and he has not come out with the truth. This finding of the learned Trib

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