JUDGMENT

P.R. Bora, J. (Oral) - The appellants original claimants in Motor Accident Claim Petition No.26 of 2011 decided by Motor Accident Claims Tribunal at Nandurbar on 23.10.2012 have preferred the present appeal challenging the said Judgment and Award.

2. The appellants, who are hereinafter referred to as the claimants, had preferred the aforesaid claim petition claiming compensation on account of death of Shaikh Javid @ Javed Patve alleging the same to be caused in a vehicular accident happened on 23.06.2011 having involvement of a dumper bearing registration No.MH39/E992 owned by present respondent no.2 and insured with present respondent no.3. It was the case of the claimants before the Tribunal that, on 23.06.2011 when deceased Javid along with his brother-in-law Jakir were proceeding on motorcycle from Dhule Chaufuli side to Railway over bridge side, their motorcycle was dashed by the offending dumper and in the accident so happened, deceased was severely injured and ultimately succumbed to the accidental injuries on the same day while under treatment in the Civil Hospital at Dhule. The claimants had alleged that, the accident in question happened because of the sole negligence of the driver of the offending dumper. The claimants had, therefore, claimed the compensation of Rs. 20,00,000/jointly and severally from the owner and insurer of the said dumper.

3. The owner and the driver of the said dumper though appeared before the Tribunal, did not file their written-statement and the petition was proceeded without their written-statement.

4. Respondent No.3 - Insurance Company had filed its written statement and had resisted the petition on various grounds. Insurance Company had taken the defence of negligence on part of the deceased in occurrence of the alleged accident. The income, age and the dependency etc., were also disputed by the Insurance Company.

5. In order to substantiate the contentions raised in the claim petition, claimant No.1 -Anisabee deposed before the Tribunal. In addition to the oral evidence of Claimant No.1 Anisabee, the claimants had placed on record the copy of the appointment letter issued in the name of deceased Javid @ Javed from the Railway Department and had also placed on record the certified copies of the police papers pertaining to the alleged accident. None of the respondents adduced any oral or documentary evidence before the Tribunal. The learned Tribunal after having assessed the oral and documentary evidence brought on record though determined the amount of compensation payable to the claimants to the tune of Rs. 16,75,000/, held the claimants entitled for the amount of Rs. 5,05,000/only from the owner and insurer of the offending dumper recording a finding that, in occurrence of the alleged accident, the negligence on part of deceased Javed was to the extent of 70% and as such, the claimants were entitled to receive only 30% of the amount from the owner and insurer of the offending dumper. Aggrieved by the order so passed by the Tribunal, the claimants have preferred the present appeal.

6. The learned Counsel appearing for the claimants assailed the impugned Judgment on various grounds. The learned Counsel submitted that, deceased Javid was a pillion rider on the motorcycle of Jakir, when the alleged accident happened. The learned Counsel submitted that, in no case, it can be said that there was any contribution of deceased Javid in occurrence of the alleged accident. In the circumstances, according to the learned Counsel, the Tribunal has manifestly erred in holding the negligence to the extent of 70% on the part of deceased Javid. The learned Counsel further submitted that, it was the specific case of the claimants that, in occurrence of the alleged accident, there was absolutely no negligence of the motorcycle rider and the entire negligence was of the dumper driver. The learned Counsel further submitted that, even if it is assumed that there was some negligence on part of the mot