( 1 ) DR. Sudesh Mahajan, a practising specialist Doctor in naphrology, settled in America and running his own hospital there, was on his way to Jaipur along with his two brothers in a Maruti car which was allegedly hit on the rear right side by a truck trawler coming from the opposite direction resulting in his death. His LRs (respondents No. 1 to 6) filed claim suit (No. 325 /1995) impleading drivers/owners and Insurers of both vehicles as party-respondents, claiming compensation of Rs. 54 crores and odd from them on the ground that annual income of deceased was U. S. $ 9 lakhs or so. They, however, alleged and attributed rash driving and negligence to trawler driver Bal Kishan.

( 2 ) ALL respondents filed their respective written statements, with one group blaming the other. But Tribunal framed two issues - one related to alleged rash and negligent driving of trawler driver and the other on determination and computation of compensation.

( 3 ) THE claimants (R. 1-6) examined only two witnesses (public witness1) widow of the deceased Doctor and (public witness2) car driver Gulsher Ahmed. The widow confined her testimony to the income and earning of the deceased and the car driver deposed about the manner in which accident had taken place. Respondents 7-8 trawler driver and its owner appeared as their own witnesses. They denied allegations of car driver and shifted blame on him.

( 4 ) APPELLANT then filed an application under Sections 149 and 170 of the m. V. Act on 12. 8. 1997 seeking permission to defend the claim petition on merits, on the plea that trawler driver and owner had failed to contest the claim effectively and to render any assistance or co-operation even when they were called upon to do so and that it had reason to believe that they were not interested in the proper conduct of the claim petition as they had not adduced sufficient independent evidence. This application was opposed by respondents. But Tribunal allowed it on the ground that appellant had reserved a right in its policy to defend the claim on behalf of insured which plea was taken by it in its written statement and that it had also got the accident investigated through an independent investigator, whose testimony could be crucial in the case if application was allowed. Pursuant thereto appellant examined seven witnesses, viz. : (1) RW-3/1 Sh. Rajinder Anand (photographer), (2) rw-3/2 Sh. A. K. Sharma (Engineer from the Maruti Udyog Ltd.), (3) RW-3/3 Dr. S. Velmurugam (Engineer from Central Road Research Institute), (4) RW-3/4 Sh. G. L. Yadav, Investigator, (5) RW-3/5 Ex. Inspector Triloki Nath Sharma, (6) RW-3/ 6 Sh. Bhoop Singh, and (7) RW3/7 Sh. Gajraj Singh, two Dhaba owners claimed to be eye-witnesses.

( 5 ) TRIBUNAL on appraisal and appreciation of evidence answered the first issue related to negligence in favour of claimants (R. l-6) and against appellant and respondents 7 and 8. It did so after it found that driver and owner of offending trawler had denied car driver s allegations in generalised terms and had failed to put forward their own version of the accident. It also noticed that their story that car driver was responsible for the accident was not taken by them in their written statement, nor did they cross-examine the car driver on this. It also found that they had failed to examine two material witnesses - one Khalasi and the second trawler driver who accompanied the driver of offending vehicle at the relevant time. It accordingly concluded that trawler driver s version was an after thought and concocted and his evidence unreliable and unworthy.

( 6 ) TRIBUNAL then dealt with other seven witnesses of appellant and after analysing the statement of each found that none of them had attributed any negligence or rash driving to car driver. It also pointed out that after appellant was allowed to contest the claim on merits, it had not thought it proper to amend its written statement and take up the plea of negligence by car driver.