1. Second respondent insurance company in MVC No.8035/2004 on the file of MACT, Bangalore, has come up in this appeal impugning the judgment and award dated 8.2.2008 passed therein.

2. Brief facts leading to this appeal are as under:

The case of claimants before the Tribunal is that first claimant is widow of one Muniyappa @ Pullappa, claimants 2 to 4 are his children and 5th claimant is his mother. Though in the body of judgment she is shown as mother, in the cause title she is shown as wife of deceased Muniyappa @ Pullappa. According to claimants, on 27.11.2004 at about 5 pm., when deceased was proceeding in front of the shop of one Shamanna, complainant in FIR, which is at Ex.P1 was hit by a scooter bearing No.KA-05/R.2688. In that behalf complaint is lodged by Shamanna on the same day i.e, on 27.11.2004 at about 9 pm. Based on that complaint, FIR was registered and both are referred to as Ex.P1 before the Tribunal.

3. At this juncture it is necessary to bring on record certain facts. Admittedly, the person who met with accident on 27.11.2004 at 5 pm., in front of Shamanna’s shop at H.Cross was an unknown person to everybody including Shamanna. In the complaint victim is referred to as unknown person, aged about 45 years. In the handwritten complaint of Shamanna, it is stated that two persons who were traveling on scooter No.KA-05/R.2688 from Vijayapura to H.Cross hit the unknown person resulting in his death. It is also stated that the persons who were traveling on the scooter also fell down and suffered injuries. As stated in the complaint, Shamanna enquired with the rider and pillion on the offending scooter as to who they are and he was informed that rider of the scooter is one Usman s/o Rasool Khan of Vijayapur and the person on pillion seat was Moula s/o Abdulla of Kuba Mohalla at Vijayapura. The complaint gives explicit detail about the manner in which accident took place, injuries sustained by the rider and pillion rider of scooter, number of the scooter, the name of rider, the name of pillion everything. Based on that FIR is also prepared. Subsequently, the body of deceased was taken to post mortem. In the inquest report which is prepared on 28th in Sidlaghatta Government Hospital, the body is referred to as that of unknown person. It is seen on 28.11.2004 a further statement of Shamanna is said to have recorded to state that vehicle which caused accident is not KA-05/R-2688 but it is vehicle No. CKS 7872.

4. It is interesting to note that the original complaint attached to Ex.P1 is in the handwriting of Shammanna, for which he has affixed his signature in Kannada, whereas the further statement said to have taken on 28.11.2004 bears the signature of Shamanna in English. The said further statement does not say how and when he came to know about the mistake regarding the number of vehicle, when he has explicitly stated the number of vehicle, the name and father name of persons who were travelling on that scooter in his own handwriting i.e., immediately after the accident. The next day how did he came to know that what was said by him on previous day is incorrect, is not stated in the alleged further statement. What made him to give further statement is also not forthcoming in the further statement. However, with the assistance of this document it is seen that a charge sheet is filed on 17.12.2004. Based on which criminal prosecution is launched against one Bakaash who is said to be the rider of scooter No.CKS 7872. It is further seen subsequently claim petition is filed by the claimants before the Tribunal contending that the unknown person who died in the accident is one Muniyappa @ Pullappa i.e., husband of first claimant, father of claimants 2 to 4 and son of 5th claimant. There is nothing on record to establish whether they are the legal heirs of deceased Muniyappa and the body which is found is that of Muniyappa. However, claim petition is filed seeking compensation for his death, Simultaneously, c