1.By this appeal, the appellants (hereinafter referred to as “the claimants”) take exception to the Judgment and Award dated 13/12/2001 passed by the Motor Accident Claims Tribunal, Mapusa, in Claim Petition No. 1/1996 by which Tribunal has dismissed the claim petition filed by the appellants seeking compensation of Rs.8,00,000/- (Rupees Eight lakhs only) for the death of their son Jayesh Kalangutkar in a vehicular accident which occurred on 18/9/1996 between 4.30 p.m to 5.00 p.m on the highway at Peddem Mapusa Goa. The claimants are the parents of the deceased Jayesh who met with an accident on 18/9/1996 on the highway at Peddem, Mapusa while travelling in a tempo bearing no. GA-01-V-2946 owned by respondent no. 4 and insured with respondent no.5. The deceased was travelling in the said tempo, which was coming towards Mapusa from Sanquelim. The rear end of the tempo dashed against the mirror on the driver side of the bus bearing No. GA-01-V-2756, driven by respondent no. 2 and owned by respondent no.1, insured with respondent no.3. On account of the said accident, serious injuries were caused to Jayesh, who succumbed to his injuries in the hospital on the next day. It was further the case of the claimants that deceased was student of DMC college of Commerce with brilliant academic career and he was doing carpentary work and earning Rs.3,000/- per month.

2. Respondent no.3 resisted the claim petition on the ground that bus was not insured with respondent no.3 and, as such, respondent no. 3 was not liable to pay any compensation. The claim Petition proceeded ex-parte against respondent nos. 1 and 2.

3. The case of respondent no. 5 was that the liability was governed under the terms and conditions of the policy of insurance and it was not liable to pay any compensation since deceased was travelling in the body of the tempo as passenger in contravention of the provisions of Motor Vehicles Act and Rules framed there under. The policy did not cover the passenger travelling in a tempo and, as such, it was not liable to pay any compensation to the claimants.

4. On the basis of the pleadings of the parties the Tribunal framed following issue:-

Whether the applicants prove that they are entitled for compensation of Rs.8,00,000/- (Rupees eight lakhs only)?

5. The claimants examined Narayan Kalangutkar, AW1; Shrikant Naik, AW2; Dr. Silvano Sapeco, AW3; Digamber Naik, AW4 and Mohandas Naik, AW5. On behalf of the respondent no. 5, Mr. Pandharinath Anvekar, Assistant Administrative Officer of National Insurance Company was examined as RW 1. The claimants and respondent no. 5 also produced documents in support of their case.

6. The Tribunal upon appreciation of the evidence led by the parties held that the claimants have failed to prove rash and negligent driving on the part of respondent nos. 2 and 4, who were driving the two vehicles and consequently, dismissed the claim petition.

7. Mr. Lawande, learned Counsel appearing for the claimants in support of the appeal assailed the Judgment and award of the Tribunal on the following grounds:-

i Tribunal erred in holding that the claimants have failed to prove rashness and negligence on the part of respondent nos.2 and 4, who were driving the two vehicles;

ii. Once it was proved that the two vehicles were involved in the accident and that the deceased who was travelling in a tempo, had died of serious injuries suffered in the accident, it has to be presumed that the drivers of both the vehicles were rash and negligent in driving the vehicles, more particularly when the drivers have not stepped in the box;

iii. Once Order under Section 140 of the Motor Vehicles Act was passed directing respondent nos.3 and 5 to pay compensation, the Tribunal ought to have awarded compensation after holding that respondent nos.2 and 4 were rash and negligent in driving the vehicles;

iv The defence of respondent no. 3 that the bus was not insured with it, has not been substantiated by respondent no. 3,