S. C. MOHAPATRA, ABDUR RAHIM, JJ.

( 1 ) THESE three appeals under Section 110-D of the Motor Vehicles Act, 1939, (hereinafter referred to as the Act) are in respect of death of two persons in an accident while going on a motor cycle. Since the three appeals arise out of common judgment and involve same question they are heard together and are disposed of by this judgment.

( 2 ) ON 19. 4. 1977 Nizam Ali, an employee of a fertilizer store, was going on his motor cycle with ahmad Husain. Nizam Ali was driving the motor cycle and Ahmad Husain was pillion rider. Motor cycle collided with truck No. UTF 1359 which was coming from the opposite direction. As a result of this accident Ahmad Husain, the pillion rider, died on the spot sustaining fatal injuries. Nizam Ali who also sustained severe injuries was removed to hospital for treatment where he died later.

( 3 ) ASSERTING that accident was on account of negligence in driving of the truck, widow of Nizam ali and their minor daughter aged two years filed an application for compensation of Rs. 2,00,000/ -. Widow and four daughters of Ahmad Husain claimed compensation of Rs. 2,00,000/in a separate claim application. Mother and two sisters of Ahmad Husain were added as opposite parties. Claims were made against driver, owner and the insurer of the truck. Both applications were heard together and one set of evidence was brought to record.

( 4 ) CLAIMANTS in a proceeding for compensation are required to satisfy the Tribunal that driver of the vehicle which caused the accident was negligent. Added to it, claimant has to satisfy how compensation claimed is justified and who is liable to pay the compensation. Both sets of claimants alleged that truck belonged to respondent No. 2 which was driven negligently by respondent No. 1 for which he is primarily responsible to pay the compensation. Owner is vicariously liable for the same and insurer (respondent No. 3) having agreed under terms of the policy is to indemnify the owner towards his liability and as such is also liable to pay the compensation. In order to satisfy the Tribunal, claimants examined four witnesses and produced certified copies of first information report, post-mortem report, copies of statement of the chaukidar and site plan. Opposite parties have examined the driver and produced certified copies of the judgment in appeal preferred by the driver against his conviction in the trial court, acquitting the driver of charges of negligent driving against him.

( 5 ) SINCE accident, ownership and insurance were not disputed, Tribunal considered the question of negligence and held by appreciating evidence of PW 4 and DW 1 that driver of the truck was not negligent and driver of the motor cycle was negligent for which there was accident. In view of this finding the Tribunal did not consider the question of just compensation and held that it is redundant. Against this judgment all the three appeals have been filed-two by claimants in both the claim petitions and the third by mother and two sisters of deceased Ahmad Husain.

( 6 ) TRIBUNAL discarded documents on the question of negligence, considering evidence of PW 4 and DW 1, the driver of the truck. PW 4 was not given importance since he did not speak about rash and negligent driving of the truck in his evidence and stated that collision took place from right side of the truck from which Tribunal drew inference that truck was on the left side of the road and truck driver was not negligent in driving the truck. Tribunal accepted the evidence of the driver to be convincing and from his evidence accepted that the motor cycle was coming on middle of the road. DW 1 was continuously blowing horn. Driver of the motor cycle was looking towards the station and all of a sudden had collision with the truck when the truck was slowly moving and it was no occasion to stop the vehicle.

( 7 ) WE are of the view that Tribunal was not correct. Nature of accident was such that there was spot death of a

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