The main legal point established in the judgment is that the accident was solely due to the deceased's rash and negligent driving, and the claimants are entitled to compensation under S.92A of the Motor Vehicles Act.

Jagannadha Raju, J.

1. This is an appeal by the claimants who are the parents of the deceased Dr. K.P. Mohammed Ashraf, who died in an accident which took place at 1.30 P.M. on 1-1-1979 in front of the Karuna Hospital, Cheruvannur. The appellants filed M.A.C. No.940 of 1980 which was originally numbered as O.P.No.183 of 1979 on the file of the District Court, Kozhikode. In the O.P. the claimants claimed a compensation of Rs.3,00,000/- for the death of their son. The Motor Accidents Claims Tribunal, Kozhikode, by its judgment dated 28-6-1984 dismissed the O.P. on the ground that the accident took place as a result of rash and negligent driving of the motor-cycle by the deceased and that it was a clear case of motor-cycle coming and dashing against the bus, which was on its right side of the road. The Tribunal held that the petitioners failed to prove negligence on the part of the bus driver, the second respondent. Aggrieved by the dismissal of O.P. the present appeal is filed.

2. In this appeal Shri. T. H. Abdul Aziz, counsel appearing for the claimants - appellants, contends that the judgment of the Tribunal is wholly unjustified. The accident took place in the middle of the road and it is a clear case of the bus, KLZ 6364, driven by the second respondent, at great speed and in a negligent manner, coming and dashing against the motor-cycle of the deceased who was coming in the opposite direction. There is no acceptable reason to doubt the evidence of PWs.3 and 4 who are eye-witnesses to the accident. While PW3 saw the accident while he was on the road, P W4 who is a passenger in the offending bus saw the accident while he was sitting in the front portion of the bus to the left of the driver of the bus. The Tribunal went wrong in placing reliance on interested evidence of RW1, the driver, and the evidence of RW2, the Assistant Sub Inspector of Police, who prepared Ext. R2 inquest report long after the accident took place. The decision of the Tribunal is mostly based upon the inquest report and no reasons are given for discarding the evidence of PWs.3 and 4 and preferring the recitals in the inquest report. Shri. Aziz further contends that it is clear from the evidence that the accident took place in the course of the bus overtaking another bus and after hitting the motor-cycle it dragged the motor-cycle and the injured to some distance. The skid mark of 8 metres length clearly indicates that the bus was travelling at a terrible speed. He contends that at the most it can be said that the driver of the motor-cycle, the deceased, is guilty of contributory negligence for the accident. Under no circumstances, can it be said that he is solely responsible for the accident. Shri. Aziz argues that this is a case where res ipsa loquitur applies, and there is a presumption in favour of negligence on the part of the bus driver. As a last argument Shri. Aziz urges the court to appreciate the evidence in a sympathetic manner and on humanitarian considerations as the deceased, a young promising doctor, aged 26 years, died in the accident.

3. The learned counsel for respondents land 2, the bus owner and the driver, contends that PWs.3 and 4 are trumped-up eye-witnesses procured by the uncle of the deceased doctor. Their evidence was rightly discarded by the Tribunal. The evidence of PWs. 3 and 4 does not indicate in which portion of the road the accident and the impact took place and how it took place. The evidence on record clearly indicates that the motor-cycle driven by the deceased came at great speed and on its wrong side and violently dashed against the bus, which was travelling on its right side. The theory of the accident taking place while the bus was overtaking another bus is demolished by the circumstantial evidence and the position of the bus and the motor-cycle. The physical features noticed at the time of inquest are consistent with the case of the motor cycle coming and dashing against the bus. They are not consistent w