JUDGMENT :

1. Heard Sri Sumit Suri, Advocate, holding brief of Sri Nipun Singh, learned counsel for appellants, Sri Atul Kumar Srivastava, learned counsel for respondents-Insurance Company and perused the record of Tribunal.

2. This appeal, at the behest of the claimants, challenges the judgment and award dated 29.09.2015 passed by Motor Accident Claims Tribunal, Baghpat (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 24 of 2013 whereby the claim petition has been dismissed.

3. The facts as culled out, from the record are that the deceased was a pillion rider on the two wheeler driven by Akash son of Bhanwar Singh. Both of them were returning home one Wagon-R was being driven rashly and negligently, dashed with the motorcycle whereby the driver and the deceased were injured. The accident occurred on 22.2.2013 and for a period of two days he survives.

4. On 23.02.2013, the respondent filed its reply disputing the fact that the driver of the vehicle was driving the vehicle rashly and negligently and was driving the vehicle without taking proper care and caution and the vehicle was insured with insurance company.

5. The claimants filed documentary evidence so as to prove oral documentary evidence. The tribunal has framed five issues and decided all the issues and dismissed the claim petition. The tribunal dismissed the claim petition on totally ungermane grounds which could not be made on the basis of surmises and conjectures. The tribunal disbelieved the involvement of the vehicle on the ground that driver of the vehicle did not sustain serious injuries. He has disbelieved the evidence of PW 1 to 5 that they are not to be disbelieved and has relied on the decision of Orissa High Court. The investigator report, who has produces PW1 has been believed. According to D.W.1 the accident occurred due to involvement with some other vehicle and not that of Wagon-R. It is held that the evidence of PW.1 is not trustworthy and that accident occurred with unknown vehicle and the FIR has been given after two days. The tribunal has considered the facts which are not proved, the fact that charge-sheet is led against the driver and owner of Wagon-R. The charge-sheet and FIR prima facie prove the accident between the two vehicle. During investigation DW1 did not mention the fact that the accident occurred with which vehicle. The investigator just because of the investigator found that the vehicle involved in the accident was also really involved in the accident in the year 2012 and on the same basis he has come to the conclusion that the vehicle was not involved. He has not examined any other person as driver of the motorcycle. The charge-sheet led against Manoj Kumar just because Satpal Singh and Harpal Singh did not carry said vehicle that it is full proof investigation. He has not come out with number of vehicle which he suspects was involved. All these facts will go against the respondent-insurance company. Thus eye witnesses opined we will have to upturn the findings as far as non involvement of the vehicles, hence the matter is allowed. We would have decided the quantum of compensation as it is composite negligence of both the drivers. The driver and owner of the insurance company of the motor cycle is not joined as respondent party.

6. The order of the Tribunal is based on hyper technical ground that the FIR did not disclose the number of vehicle and that it was lodged against unknown vehicle. It is further submitted that the Tribunal has held that the driver of the vehicle did not sustain any injury. The Tribunal has rejected the claim petition of the appellants, who have lost the bread earner of the family.

7. Learned counsel for the appellant has heavily relied on the decision of the Apex Court in the case of Mangla Ram Vs. Oriental Insurance Co. Ltd. and others [2018 LawSuit (SC) 303]. He further relied in the case of Sunita and others Vs. Rajasthan State Road Transport Corporation and another [2019 LawSuit (SC) 190] so as to discard