Hon’ble Anil Kumar Sharma, J.—Heard learned counsel for the appellant and learned counsel for respondent Nos. 1 to 7 and perused the impugned award as also the papers filed alongwith the memo of appeal.

2. The appellant being insurer of dumper registration No. UP-58T 0494 has challenged the award dated 31.10.2012 passed by the Motor Accident Claims Tribunal/Special Judge (E.C. Act), Basti in M.A.C.P. No. 127 of 2009, Prabhawati Devi and others v. The New India Assurance Company Limited and others, whereby compensation of Rs. 42,13,904/- together with simple interest at the rate of 7% per annum had been awarded to respondent Nos. 1 and 3 to 7 on account of death of Pramod Kumar Tripathi a Junior Engineer, P.W. D., Santkabir Nagar in the instant motor accident.

3. It appears that on 15.4.2009, the deceased was travelling in jeep No. U.P-51, 4618 and when it reached near Haryana ‘Dhaba’ in the vicinity of village Kaniyara at about 5.30 p.m. the driver of dumper No. UP-58T, 0494 driving vehicle rashly and negligently dashed with the aforesaid jeep resulting in instantaneous death of Pramod Kumar Tripathi. Nine (9) other people travelling in the jeep also lost their lives in the accident. The report of the accident was given to P.S. Kotwali Khalilabad District Santkabir Nagar, on the basis whereof case crime No. 898/2009, under Sections 279, 337, 338 and 304A I.P.C. was registered against driver of vehicle No. UP-58T, 0494. It is alleged that the vehicle was owned by respondent No. 3 and it was insured with the appellant.

4. The police after investigation submitted charge-sheet against drivers of both the vehicles. Respondent Nos. 1 to 7 being legal representatives of the deceased filed claim petition for an award of Rs. 87,17,600/-. The owner of dumper No. UP-58T, 0494 denied the involvement of their vehicle in the accident, inter alia alleging that the vehicle was insured with the New India Assurance Company and their driver Gopal Das was having valid and effective driving licence on the date of accident. The driver and insurer of jeep No. U.P-51,4618 also contested the claim petition and alleged that the accident took place due to rash and negligent driving of driver of dumper No. UP-58T, 0494.

5. The claimants examined Smt. Prabhawati, P.W. 1 (widow of the deceased), Pradeep Kumar, P.W. 2 (eye-witness of the accident) and Amar Nath, P.W. 3 and also filed documentary evidence. The owner of the dumper did not adduce any oral evidence and has filed the copy of driving licence of the driver and insurance document of their vehicle.

6. The appellant examined their investigator Tayyab Ali as D.W. 3. The owner of jeep No. U.P-51, 4618 has examined himself as D.W. 2 while the insurer of the aforesaid jeep produced Madhusudan Shukla as D.W. 1.

7. After hearing parties’ counsel the learned Tribunal did not find composite negligence of drivers of both the vehicles and held that the accident took place due to rash and negligent driving of dumper No. UP-58T, 0494 by its driver and accordingly, partly allowed the claim petition as detailed earlier in the judgment.

8. Learned counsel for the appellant placing reliance on the report of their investigator and the site plan has vehemently argued that the Tribunal has grossly erred in fixing sole responsibility of the accident on the driver of dumper No. UP-58T, 0494.

9. The appellant has examined their investigator Tayyab Ali as D.W. 3, who is an Advocate. The accident took place on 15.4.2009 whereas he has investigated the case since 9.11.2010. His report is based on site plan prepared by the police. The copy of the site plan has been annnexed as Annexure-3 with the appeal. The date on which the site plan was drawn by the I.O. is not available. The site plan shows that the accident took place on Khalilabad-Basti road which runs east to west it has divider and northern part of the road was under construction. The accident took place on southern part of the road and in its northern side th