( 1 ) WHO was driving the car when the tragic accident occurred the owner driver from whom compensation is claimed or his friend and co-traveller Ranvir who died on the spot and whose dependents claim compensation ? The owner driver admits that he was no doubt at the wheel on the ill-fated day at the commencement of the trip but says that he got down from the car and made over the steering wheel to the deceased just before the accident occurred. The Motor Accident Claims Tribunal has believed this theory and denied compensation. Hence this appeal by the dependents of the deceased which arises in the circumstances outlined hereafter.

( 2 ) AN application for compensation claiming a sum of Rs. 75 0 was made by the parents a 24 year old widow and a posthumous child of one Rudraditya alias Ranvir aged about 24 who died in the course of a motor car accident which occurred on the night of 22/11/1974 at about 10. 30 or 10. 45 p. m. when he was traveling in a FORD COTINA car (No DLX 942) belonging to respondent No. 1 Jyotindra Chimanlal Parikh. They were going towards Viramgam and the accident occurred on account of the fact that the rear portion of the car dashed against a neem tree and the car turned turtle. The defence of the car owner respondent No. 1 was that at the time of the accident the car was being driven by the deceased himself and that as the accident was occasioned on account of his negligence the widow and the child were not entitled to any compensation. The Insurance Company respondent No. 2 herein the Oriental Fire and General Insurance Company Ltd. filed a joint written statement and supported the stand of the respondent No. 1.

( 3 ) TILE learned trial Judge upon an appreciation of the evidence came to the conclusion thai the car which was involved in the accident was being driven by the deceased Ranvir himself and that accident occurred on account of his negligence. In this view of the matter the learned Judge rejected the claim petition by his judgment and order dated March 29 J976. The wieow and the posthumous child feeling aggrieved by the order of the learned trial Judge rejecting their claim petition have approached this Court by way of the present appeal. (It may be slated that initially the widow was impleaded as respondent No. 3 but at the time of hearing of the appeal she prayed for her name being transposed as a co-appellant. The request was granted and that is how the widow and the minor child of the deceased as also the parents of the deceased have been impleaded as appellants herein ).

( 4 ) THE central issue in this appeal is as to who was driving the vehicle at the relevant time. If the finding recorded by the trial Court on this point is unexceptionable this appeal cannot succeed. If on the other hand the appellants are able to establish that the vehicle was not being driven by deceased Ranvir but was being driven by the owner of the carrespondent No. 1 Jyotindra Chimanlal Parikh the claimants would be entitled to succeed in the claim petition. If they are able to successfully establish this point the next question would be as regards the quantum of damages and the extent of liability of the Insurance Company. We must therefore address ourselves at once to the crucial question as to who was driving the vehicle on the fateful night.

( 5 ) THE following facts emerge from the evidence- (1) that the car involved in the accident was a Ford Cotina Car an imported car valued at about Rs. 25 0 (2) The car belonged to respondent No. 1 Jyotindra Chimanlal Parikh-who used to drive the car himself. (3) On the date of the incident respondent No. 1 was driving the car from Viramgam towards Ahmedabad in the company of five of his friends one of whom was deceased Ranvir with whom he had formed a new friendship about a month back through his friend Bipinkumar Dhanjibhai Parikh. (4) When the car was proceeding towards Ahmedabad respondent No. 1 Jyotindra was driving the car and his friend Kiritkumar w