M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accidents Claims Tribunal (Auxi), Vadodara (hereinafter referred to as 'the Tribunal') passed in M.A.C.P. No. 2438 of 1998, by which learned Tribunal has partly allowed the claim petition preferred by the original claimants-respondent Nos. 1 to 4 herein and has awarded Rs. 38,70,453 as compensation for the death of one Jayendrabhai Patel and holding the driver of Suzuki motor cycle 100 per cent negligent for the accident, the appellant herein, insurer of Suzuki motor cycle involved in the accident, has preferred the present first appeal under section 173 of the Motor Vehicles Act. The facts leading to the present first appeal in nutshell are as under:

1.1. That accident in question occurred on 6.11.1998 at about 11.30 a.m. between LML Vespa scooter bearing No. G.J. 6-R 8194 and Suzuki motor cycle bearing No. G.J. 6-F 4863 on the crossroad between villages Sarbhan-Ghamnadh. The accident took place where there was 'U' turn of the road. One Jayendrabhai Patel, owner of Vespa scooter, was riding it with his relative (nephew) Ketankumar on the pillion and Hareshchandrasinh Rana, opponent No. 1, was riding Suzuki motor cycle with a pillion rider thereon, which came from the opposite direction and both the aforesaid two-wheelers collided with each other, as a result of which all the four persons on the two-wheelers fell down on the road. Jayendrabhai Patel had suffered serious head injuries and others suffered minor injuries. All of them were taken to Sarbhan Hospital. As Jayendrabhai Patel was seriously injured and sustained head injuries, he was shifted to Vadodara for better treatment where he succumbed to the injuries during the treatment. That the original claimants, his widow, two minor children and parents aged 90 and 88 years filed the claim petition before the learned Tribunal which was numbered as M.A.C.P. No. 2438 of 1998 claiming compensation of Rs. 40,00,000 with interest and costs for the death of aforesaid Jayendrabhai Patel. That Hareshchandrasinh Rana, the original opponent No. 1, who was driver of Suzuki motor cycle, and Natvarlal Maganlal Padhiyar, original opponent No. 2, was owner of the aforesaid vehicle and Oriental Insurance Co. Ltd., appellant herein-original opponent No. 3, was the insurer of Suzuki motor cycle. That father of the deceased Jayendrabhai Patel, original claimant No. 4, died pending the claim application and, therefore, he came to be deleted vide the order passed below Exh. 15.

1.2. The claim petition was opposed by original opponent Nos. 1 and 2 by filing the written statement at Exh. 15. It was contended on behalf of original opponent Nos. 1 and 2 that the allegations in para 11 of the claim petition are got up, in respect of the said accident, there was no negligence on the part of the opponents. Therefore, the original opponent Nos. 1 and 2 denied that there was any negligence on the part of the driver of Suzuki motor cycle, opponent No. 1.

1.3. The claim application was also opposed by insurer of Suzuki motor cycle, original opponent No. 3, by filing written statement at Exh. 28 denying all the allegations made in the claim petition. It was the case on behalf of the insurer of Suzuki motor cycle, the appellant herein-original opponent No. 3, that at the place where the accident took place, there was a curve and it was the deceased who was riding the scooter at high speed and came on to the wrong side and dashed with the motor cycle.

1.4. That the learned Tribunal framed the issues.

1.5. Both the parties led evidence oral as well as documentary. On behalf of the claimants, Ketankumar Bhailalbhai Patel who was pillion rider of Vespa scooter involved in the accident came to be examined at Exh. 48. That on appreciation of evidence on record, documentary as well as oral, the learned Tribunal held the issue No. 1 in affirmative and held the driver of Suzuki motor cycle, origin