JUDGMENT

P. K. TRIPATHY, J. — Feeling aggrieved by apportionment of the compensation in MACT Misc. Case No. 168 of 1983 of the Court of Third MACT, Puri, the claimants have filed this appeal challeng¬ing the impugned award dated 17.3.1993.

2. The parents of the deceased Pabanlal Agrawal filed the said MACT Misc. Case for compensation on the ground that on 15.8.1981 the mini-truck bearing registration No. ORX-2317 being rash and negligently driven caused the accident as a result of which the deceased boy standing by the side of the road suffered intantaneous death. Monthly income of the said deceased was stated as Rs. 1500/- per month and a claim was made for compensation of Rs. 2,65,000/-. Opp. party No. 1/respondent No. 1 is the owner of that mini-truck and opp. party No. 2/respondent No. 2 is the insurer of the mini-truck. In their separate written statements the owner and the insurer of the offending vehicle denied to the allegation of rash and negligent driving by the driver of the mini truck and accordingly denied to their liability to make payment of compensation. It was stated in such written statements that when the mini-truck was moving on the road in slow speed, the deceased driving the scooter made attempt to overtake the mini-truck from the wrong side i.e., the left side of the road and met with the accident by dashing against the rear portion of the Dala of the mini-truck and that is why he suffered the in¬juries and died at the spot.

3. Learned 3rd MACT, Puri framed the following issues:

“1. Is the claim petition maintainable as framed ?

2. Was the driver of O.R.X. 2317 Mini Truck negligent in caus¬ing the accident ?

3. To what compensation the petitioners are entitled ?

4. Relief ?”

4. Claimants adduced evidence of four witnesses including the claimant No. 1/appellant No. 1 being examined as P.W.No.1. Appellants also relied on documents marked Exts. 1 to 8. Out of those Exts 1 to 4 are respectively certified copies of seizure-list, charge-sheet, M.V.I., Report and Zimanama. Those documents were available in the G.R. Case No. 1784 of 1981 registered against the driver for rash and negligent driving. Exts. 5 to 8 are documents in support of the deceased’s engagement in business and earning therefrom. Opp. party No. 1, i.e., the owner of the truck examined two witnesses as O.P.Ws. 1 and 2. Out of them the driver of the offending truck was O.P.W. No. 2 and the other witness was examined as an eye-witness to the occurrence. The opp. party No. 1 also relied on documents marked Exts. A to E. Out of that Ext. E is the certified copy of statement of P.W. No. 1 which he made to police as a witness in the above noted G. R. Case No. 1784 of 1981.

5. While deciding issue No. 2, learned 3rd MACT referring to the chargesheet and the 161 statement of the claimant No. 1 and the evidence of OPW No.1 has recorded the finding that both the mini-truck and the deceased who was the scooterist then were negligent as a result of which the accident occurred. Learned Tribunal found it difficult to apportion the extent of negligence and liability by mathematical accuracy and therefore followed the convenient way of saddling the liability half and half on the insurer of the truck as well as on the claimants.

6. Admittedly, the respondents and more particularly the respondent. No. 2 has not challenged the impugned award by filing an appeal or cross-objection.

7. Learned counsel for the claimants read the evidence of each of the witnesses examined from both the sides and states that when the evidence led from the side of the claimants suffers from no contradiction or infirmity relating to the manner in which the claimants have narrated about the accident attributing the total negligence to the driver of the mini-truck, learned MACT should not have set at naught such consistent evidence by referring to a chargesheet the marker of which was not examined in the Court and besides that to the uncorroborated evidence of the OPWs. Accordingly, the argue