( 1 ) ON 17th January 1968 original opponent No. 1 had been driving scooter No. GJE 3177 in the City of Ahmedabad. Opponent No. 2 is the owner of that scooter and opponent No. 3 is its insurer. It was of Lambretta make. Opponent No. 1 is hereinafter described as the Lambretta driver for the sake of clarity. Opponent No. 4 had been driving his own scooter No. GJE 4742. It was insured with opponent No. 5. Opponent No. 4 is hereinafter described as the Vespa driver for the sake of clarity. The latter mentioned scooter was of Vespa make. On the pillion seat of the Vespa scooter Gordhandas (hereinafter referred to as the deceased for the sake of brevity) residing in the Pritamnagar Jain Society area of the City of Ahmedabad bad been sitting. The Lambretta driver and the Vespa driver had been proceeding on the cross roads. At the intersection of the roads the Lambretta scooter struck the Vespa scooter as a result of which the latter scooter was thrown away into the fending of a neighbouring bungalow and it got entangled therein. The deceased who was on the pillion seat of the Vespa scooter fell down in the fencing and sustained multiple injuries and multiple compound and complicated fractures. He was removed to the hospital where he died within an hour or two of the accident.

( 2 ) THE claimants who are his heirs and legal representatives filed the present claim petition against the owner the driver and the insurer of the Lambretta scooter and joined to this claim petition the owner and driver of the Vespa scooter and its insurer. They claimed from opponents Nos. 1 2 and 3 driver owner and insurer of the Lambretta scooter-and opponent No. 5 the insurer of the Vespa scooter-a sum of Rs 1 30 0 in damages for having caused the accidental death of the deceased by rash and negligent driving of those scooters. In the course of the trial of the claim petition before the Motor Accidents Claims Tribunal the original claim of Rs. 1 30 0 was voluntarily reduced by the claimants to Rs. 75 0 The Tribunal heard the claim petition and found that none of the scooter drivers was rash and negligent in driving his scooter and that therefore the claimants were not entitled to claim any damages from the opponents. It appears that in the opinion of the Tribunal it was an inevitable accident. In view of this principal finding recorded by the Tribunal it dismissed the claim petition.

( 3 ) IT is that order of dismissal of the claim petition filed under sec. 110-A of the Motor Vehicles Act 1939 which is challenged by the claimants in this appeal.

( 4 ) BEFORE we proceed with the examination of the evidence it is necessary to note a couple of points. In the claim petition the claimants inter alia averred that opponent No. 1 the Lambretta driver had been negligent in driving his vehicle and that this rash and negligent driving had led to the occurrence of the accident. So far as the Vespa driver the opponent No. 4 was concerned they averred that he was not directly or indirectly responsible for causing the said accident or contributing to it and that therefore he was not liable to pay any damages to the claimants. Having made this averment in favour of the Vespa driver they did not pray for any decree against him. However so far as the insurer of the Vespa scooter was concerned they stated that it was liable to the claimants in damages. Therefore they prayed for a decree against opponent No. 5. As a result of the averments made by the claimants in the claim petition they prayed for decree against opponent Nos. 1 2 3 and 5 and did not pray for any decree against opponent No. 4. In the course of the trial of the claim petition an application was made by the claimants at Ex. 63 praying for an amendment of the claim petition. It was made on 13th February 1969. By the proposed amendment they wanted to incorporate an alternative contention so far as the Vespa driver was concerned stating that if the evidence disclosed that the Vespa driver was either