JUDGMENT :

M.D. SHAH, J.

1. This appeal has been filed by the original claimants under Section 173 of the Motor Vehicles Act, 1988 being aggrieved and dissatisfied with the judgment and award dated 28th November, 2000 passed by the Motor Accidents Claims Tribunal, Ahmedabad, in MACP No. 1378 of 1998 dismissing their claim petition.

2. Facts in short are that a claim petition was filed by wife and father of deceased Raghubhai Kamabhai claiming compensation for death of the deceased which is caused in an accident which is alleged to have occurred on 14th May, 1998 when tanker No .GJ-3-U-4222 of the ownership of opponent No. 2 driven by the deceased was passing from cross roads near Pirana Octroi point towards Sarkhej and at that time, ST bus No. GJ-1-Z-118 coming from Baherampur driven by driver of opponent No. 1 rashly and negligently dashed with the tanker causing fatal injuries to the deceased.

3. Upon the summons being served, opponent No. 3 filed written statement denying the contents of the claim petition. It was contended that accident occurred because of negligence of driver of opponent No. 1 and hence, it is not liable to pay any compensation.

4. Based on the pleadings of the parties, necessary issues for determination were framed by the Tribunal. After hearing the learned counsel for the parties and considering the oral as well as documentary evidence on record, the impugned award was passed by the Tribunal.

5. I have heard learned counsel, Mr. A.V. Prajapati for the appellants, Mrs. Vasavdatta Bhatt for the respondent No. 1 and Ms. Amee Yajnik for the respondent No. 3. Though rule is duly served on respondent No. 2, nobody appears. This Court has also gone through the impugned judgment and award passed by the Tribunal as well as original records which were called for by this Court.

6. Learned counsel for the appellant, Mr. A.V. Prajapati submitted that impugned judgment and award is contrary to law and evidence on record. Relying upon the deposition of driver of offending vehicle, Mr. Harshadrai Sakalrai Trivedi and panchnama and complaint, he submitted that driver of opponent No. 1 was solely negligent resulting into the accident and, therefore, the learned Tribunal ought to have allowed the claim petition. He further submitted that the learned Tribunal has rejected the claim on the ground that the claimants have failed to prove negligence on the part of driver of opponent No. 1.

7. Learned counsel for the respondent No. 1, Mrs. Vasavdatta Bhatt submitted that there was no negligence on the part of driver of opponent No. 1. Taking this Court through the deposition of Rayaben Raghubhai who has been examined at Ext. 24, she submitted that not a single word has been uttered by her regarding negligence of tanker driver or ST bus driver and, therefore, the learned Tribunal has held that the claimants have failed to establish that the deceased died due to rash and negligent driving of driver of opponent No. 1. The said findings arrived at by the learned Tribunal are just, legal and proper and do not require to be interfered with in this appeal and, therefore, she urged to dismiss this appeal. In this connection, she placed reliance on the case of Surender Kumar Arora and another v. Dr. Manoj Bisla and others, reported in 2012 A.C.J. page 1305 : 2012 (3) T.A.C. 353.

8. It is not disputed that complaint Ext. 25 is lodged by the cleaner of tanker No. GJ-3-U-4222 Mr. Jorubhai Govindbhai Gadhvi. On going through the said complaint, it appears that when tanker was passing on the main road, ST bus, which was passing on the adjacent road, dashed with the tanker and accident in question had taken place. As per panchnama Ext. 26, there is no mark of applying brake by the driver of ST bus. This prima facie shows that the accident occurred due to head-on collision between tanker and ST bus while tanker had slightly passed away when driver of ST bus by not taking care dashed with the tanker behind the back portion of the driver side. Written st