The tribunal erred in casting liability on the appellant without sufficient evidence and overlooked the contributory negligence of the deceased.

( 1 ) THIS appeal is by the insurer challenging the award in favour of the respondents.

( 2 ) THE facts are as follows : the first respondent is the widow and the second respondent is the mother of a deceased victim of a road accident. The deceased was the driver of a truck. The truck was hired to carry goods by one other who was the owner of the goods and who was accompanying the goods. There was also a cleaner on the truck. The truck had stopped on the road side for a overnight halt and the driver had slept on the edge of the road, next to the vehicle. A jeep is said to have run over him during the night. The claim for compensation brought by respondents 1 and 2 was not resisted by the owner of the alleged offending vehicle, the appellant however, had contested the same. The appellant had adduced evidence to demonstrate the glaring inconsistencies from material on record, which were indisputable. The tribunal however, has negated the same and affixed the liability on the appellant to pay the compensation awarded. It is this which is under challenge.

( 3 ) THE counsel for the appellant would contend that the evidence of the witnesses for the appellant was completely ignored by the tribunal, to the effect that the jeep which was identified as the offending vehicle was not at all involved in the accident. While accepting the evidence on behalf of the claimants in this regard, the Tribunal has held that the First information Report and the statement made before the police were not relevant to the proceedings. This is opposed to Section 158 (6)read with Section 166 (4) of the Motor Vehicles act, 1988 (hereinafter referred to as 'the Act' for brevity ). The claim statement submitted by the insured to the insurer did not also indicate that the vehicle was involved in the accident. The wholly unreasonable stance of the tribunal that the appellant was required to establish that the jeep, which was alleged to be the offending vehicle, was in fact stationed at a place away from the vicinity of the accident, rendering it impossible for the vehicle to have been present on that road on the fateful night was held as a requirement by the tribunal. The Tribunal was placing a burden of proof on the appellant which was not contemplated in law. The appellant cannot be called upon to prove the negative. The Tribunal was completely overlooked the utter negligence of the deceased in sleeping on the edge of the road, completely exposing himself to risk and danger. The contributory negligence of the driver has been completely overlooked by the Tribunal.

( 4 ) THE counsel for the respondents, claimants on the other hand would seek to justify the award and also claim that the claimants are entitled to enhancement of compensation.

( 5 ) THE limited question to be considered in the present appeal would be whether the tribunal was justified in casting the liability on the appellant in respect of the compensation payable, having regard to the facts and circumstances.

( 6 ) IT is seen from the material available on record, that the deceased had been run over by another vehicle at a time when two others, namely, the owner of the goods carried in the truck, PW-2 and the cleaner of the lorry, were asleep. They awoke on the screams of the deceased and may have seen a vehicle in the darkness. This was the tenor of the first information report. There was no particular vehicle identified. It was in a later version that it is claimed that the offending vehicle was identified under torchlight. Significantly, the driver of the offending vehicle who was a party to the proceedings was not chosen to be proceeded against and the petition was given up against him. He had however, tendered evidence on behalf of the respondents and denied that he had caused the accident or that the vehicle was anywhere in the area of the accident spot on the fateful night. On the other hand, he had claimed that the vehicle had been stationed at a place far away from there that night a

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