( 1. ) BY this appeal under section 173 of the Motor Vehicles act, the appellant widow, child and parents of the deceased Gajriya alias Gajju, aged 25 years, have assailed the award dated 12. 1. 2000 passed by the Second Additional motor Accidents Claims Tribunal, Barwani in Claim Case No. 58 of 1998, by which the claim has been dismissed on the ground that the appellants failed to prove that it was on account of rashness and negligence of Kamlesh, NA 1, that injury was caused to him to which he succumbed eventually.

( 2. ) LEARNED counsel for the appellants submits that Gajriya was aged 25 years and his source of livelihood was income as labourer. On 5. 2. 1998 he was called by dinesh to work as labourer. Although, the deceased was not inclined, he was asked to sit on the pillion of the motor cycle for being taken to the place where he was required to work as labourer. However, before deceased Gajriya could properly sit on the said vehicle the rider of the motor cycle started the motor cycle with a jerk, the foot of the deceased got entangled in the spokes of rear wheel and he sustained severe injury. He was taken to the Primary health Centre, Rajpur itself, from where he was referred to Barwani Government hospital. However, he succumbed to the injury on 17. 2. 1998 and immediately an f. I. R. was lodged. The vehicle was owned by Dinesh s/o Supdilal Modi, respondent no. 2 and was insured with New India assurance Co. Ltd. Despite evidence to the effect that it was on account of rashness and negligence of rider of the motor cycle that the accident occurred, learned Member of the Tribunal has dismissed the claim on the ground that neither the rashness nor negligence of the driver of the motor cycle was established by the claimants. Learned counsel for the appellants submits that it is manifest from the evidence of AW 1, meerabai, widow of the deceased, AW 2, singla an eyewitness of the incident and aw 3 Sakara that it was the sheer negligence of the respondent No. 1 in suddenly starting the motor cycle that injury was sustained by the deceased to which he eventually succumbed. Under these circumstances, the learned counsel contends, the finding of the Claims Tribunal that the claimants have failed to prove rashness and negligence, is perverse.

( 3. ) MR. Anil Goyal, the counsel for the insurance company, respondent No. 3, submits that since the evidence was in variance and not consistent, the Claims tribunal has rightly dismissed the claim on the ground that the claimants failed to prove rashness and negligence.

( 4. ) WE have heard the learned counsel for the parties and perused the record. The claimants examined in all four witnesses. AW 1 claimant Meerabai, widow of the deceased, has deposed that on account of the use of the motor cycle, her husband had received injury and he was rushed to hospital immediately. Kamlesh had asked her not to report the matter immediately as he would take care of the treatment. Thereafter, her husband was taken to the hospital at Barwani, where he was treated for 6 days and, thereafter, he had died. She has categorically said that it was on account of the use of the motor cycle that her husband sustained injury. In cross-examination also she has been quite consistent. Singla, AW 2, corroborates her and states that Kamlesh started the motor cycle rashly and just 20 ft away, while the deceased had not been able to adjust himself as pillion rider Gajriyas foot got entangled in the rear wheel and it started bleeding. Similar is the version of Sakara, AW 3. Sakara has stated in cross-examination that no sooner Gajriya tried to mount, the motor cycle was started with the result his balance was lost and his foot had got entangled in the wheel. Dr. Suresh Chandra Hardiya, AW 4, has stated that on account of the injury, tetanus had developed and deceased Gajriya succumbed to the injury.

( 5. ) FROM the conjoint reading of the testimony of AW 1, Meerabai; AW 2, singla and AW 3, Sakara we are of the vi