By the Court.—This is an appeal against the order dated 30.9.1997 passed by the Motor Accident Claim Tribunal/ Ist ADJ, Muzaffarnagar (the Tribunal) dismissing the claim petition No. 359 of 1992.

THE FACTS

2. Sri Sushil Chand Goel (the Deceased) was going from Agra to Muzaffarnagar by Car No. DDB-8712 (the Car) on 4.3.1992. At about 1:00 hours, the Car met with an accident with Truck No. UTL-7806 (the Truck) coming from the opposite direction.

3. In this accident, the driver of the Car was killed on the spot and the Deceased was seriously injured. He was taken to the Batra hospital, Delhi where he died on 6.3.1992.

4. Sri Pradeep Kumar Mittal was owner of the Car. He lodged an FIR on 4.3.1992 at about 2:35 hours. It was registered as Case Crime No. 87 of 1992 under Sections 279/337/304A IPC Police Station Khatauli, District Muzaffar Nagar.

5. The allegations in the FIR are as follows:

Ishwar Chand was driver of the Car. He had taken the Car to Agra. When he was going further from Agra, it met with an accident with the Truck;

In the accident, the Deceased, a relation of the car owner, received injuries and the car driver died on the spot;

This incident happened at about 1:00 hours on 4.3.1992. This information was received through relations.

A request was made to do the needful.

6. The widow and two major sons of the Deceased (the Claimants) filed the claim petition claiming Rs. 10,76,865 as compensation. The allegations in the claim petition was that the accident took place due to negligence of the Truck driver. In the claim petition the following persons were impleaded:

The driver and owner of the Truck;

The owner of the Car;

The New India Insurance Company Ltd. (the Company) insurer of both the vehicles; and

The two married daughters of the Deceased as proforma respondents.

7. The defendants in the claim petition filed written statements:

The Truck driver and the Turck owner alleged that negligence was of the Car driver;

The Car owner alleged that negligence was that of the Truck driver;

The company denied their liability to pay the compensation;

The daughters of the Deceased supported the claim petition.

8. The Claimants produced the following witnesses:

Smt. Sudha Goel (PW-1): Widow of the Deceased;

Sri Dinesh Arora (PW-2): Eye-witness of the incident.

9. The Truck driver, Truck owner or Car owner did not produce any witness. However, the Company produced one Rajendra Prasad (DW-1), clerk in the RTO office Dehradun.

10. The Tribunal dismissed the claim petition on the following two considerations:

In the claim petition, it was alleged that the negligence was of the Truck driver, whereas, in the oral evidence it has been stated that the Truck driver as well as Car driver were equally negligent in the accident. The oral evidence is inconsistent with the allegations in the petition. The version of the Claimants cannot be believed.

Dinesh Chand (PW-2) had not seen the occurrence.

11. The Claimants have filed the present appeal against the order dismissing their claim petition.

POINTS FOR DETERMINATION

12. We have heard Sri Vivek Kumar Singh, counsel for the Claimants, Sri AK Shukla, counsel for the Company. The following points arise for determination in the case:

(i) Whether the Tribunal was right in dismissing the claim petition;

(ii) In case the answer to the aforesaid point is in affirmative, then what compensation should be awarded to the Claiments;

(iii) Who is liable to pay the compensation.

1st POINT: CLAIM PETITION CANNOT BE DISMISSED

13. In the claim petition it was alleged that the negligence was that of the Truck driver. The Car owner has also filed a written statements in which it was mentioned that the accident took place because of the negligence of the Truck driver. However, the Truck driver and the Truck owner have also filed their written statements. In their written statements, it was mentioned that the accident took place because of the negligence of the Car driver and not because of the negligence of the Truck driver. Thus, there w