JUDGMENT

V. Gopala Gowda, C.J.

1. Aggrieved by the judgment dated 4.1.1994 passed by the Second Motor Accident Claims Tribunal (SD). Berhampur in M.A.C. No.397 of 1991, dismissing the claim filed by the claimants, the present appeal has been filed by the claimants seeking for allowing the appeal and awarding just and reasonable compensation, urging various facts and grounds.

2. In the impugned judgment, the undisputed facts have been adverted. Therefore, there is no need for this Court to repeat the same in this judgment.

On 15th October, 1991 at about 12 noon while the husband of the first claimant-deceased Niranjan Behera was coming from Karachuli to his village Biranchipur on a cycle in his left side, the Truck bearing registration number OAG 1830 being driven in a rash and negligent manner came from his behind and knocked him down on the road in between Karachuli and Baghua, as a result of which he sustained severe bodily injuries. Immediately he was admitted in the hospital and in spite of treatment, he succumbed to the injuries. Hence the claim petition was filed by his wife and children.

3. The respondents filed joint written statement denying the averments made in the claim petition and the liability to pay any compensation. Their stand was that one Bijaya Kumar Swain was returning from Karachuli driving the offending vehicle carrying policemen towards Buguda Police Station in a normal speed and blowing horn. At that time the deceased having failed to control the cycle due to the rough road, came in contact with the offending vehicle for which he fell down and sustained bodily injuries. Later on he succumbed to the said injuries in the hospital. On the basis of the report lodged by the ASI, Kishore Kumar Pradhan, Buguda P.S. Case No.148 of 1991 was registered, the matter was investigated and final report was submitted to the effect that there was no culpable negligence on the part of the driver.

4. On behalf of the claimants, two witnesses were examined and three documents were marked and exhibited. Appellant NO.1-widow of the deceased examined herself as P.W.1 alongwith one Nalinikanta Behera (an eye witness) as P.W.2. Ext. 1 is the certified copy of the plain paper F.I.R. Ext. 2 is the formal F.I.R., Exts. 3 is the certified copy of the Post-mortem report. On behalf of the respondents, the driver of the offending vehicle was examined as the sale witness but no document was exhibited.

5. The Tribunal framed four issues and answered the same against the appellants. Neither the evidence of the witnesses examined on behalf of the appellants nor respondents, were given any weightage by the Tribunal. However, the case pleaded by the respondents was accepted. It was observed that the accident occurred due to the negligence of the deceased who was riding on a cycle on the fateful day. Though the final report was submitted to the effect that there was no negligence on the part of the driver of the offending vehicle, the same was not protested by the claimants. Therefore, it was presumed that the claimants have nothing to say in that respect. The Tribunal has observed that though P.W.2 was examined by the police with regard to the accident, the certified copy there of was not filed. Had such statement been filed, the circumstances under which the final report was submitted could have been judged.

6. Learned .counsel for the appellants contended that the Tribunal has committed gross error in making a nil award. He further contended that while disbelieving the evidence of the driver, the sole witness examined on behalf of the respondents, the Tribunal should not have disbelieved the claimants. That apart, disbelieving the evidence of P.W.2 who has categorically stated that he was examined by the police with regard to the accident, and relying on the police papers, the Tribunal dismissed the claim application which is not sustainable in the eye of law. It is contended that the deceased was a mason and he was getting engagements regula