( 1. ) THIS appeal filed by the New India Assurance Co. Ltd. under Section 110 D of the Motor Vehicles Act, 1939, is directed against an award dated July 10, 1978, passed by the Member, Motor Accidents Claims Tribunal, Jhabua, in Claim Case No. 2 of 1977, whereby he has awarded a total compensation of Rs. 26,667 plus costs and interest, in favour of claimant-respondents Nos. 1 to 5, as apportioned therein, though they had put up a claim for Rs. 1,35,000 by way of compensation on account of the death of Mathur Kumhar due to an accident that occurred on March 24, 1977, by truck No. MPI 4109.

( 2. ) THE facts giving rise to this appeal may be stated, in brief, thus Claimant-respondent No. 1, Smt. Lakhibai, is the widow of the deceased, Mathur Kumhar, respondents Nos. 2, 3, 4 and 5, namely, Narayan, Kumari Savita, Kumari Kanti and Amrit, are the sons and daughters of the deceased. Truck No. MPI 4109 is owned by respondent No. 7, Mahendrasingh, of which respondent No. 6, Narayan, was the driver on the fateful day. The said truck was insured with the appellant, the New India Assurance Co. Ltd. , at the relevant time. On March 24, 1977, when the deceased, Mathur Kumhar, was proceeding on foot on the Rambhapur road, truck No. MPI 4109, owned by respondent No. 7 and driven by respondent No. 6, came from behind in a rash and negligent manner, without blowing the horn and dashed against Muthur Kumhar, who, on account of the said accident, received serious injuries as a result of which he died instantaneously. The post-mortem report is exhibit P-2 in which the age of the deceased has been shown to be about 40 years. The occupation of the deceased at the time of the accidental death was that of a kumhar, earning about Rs. 400 per month. The respondent-claimants, therefore, put up a total claim of Rs. 1,35,000 by way of compensation under various heads.

( 3. ) RESPONDENTS Nos. 6 and 7, namely, the driver of the truck and the owner thereof, remained ex parte. The appellant assurance company contested the plaintiffs claim and also sought permission to contest the claim under Section 110c (2a) of the Motor Vehicles Act, on the grounds that were available to the owner as well as the driver of the truck, against whom the claim was made.

( 4. ) LEARNED Member on evidence found that the accident occurred on account of the rash and negligent driving of the truck driver in which the deceased, Mathtir Kumhar, sustained serious injuries, which resulted in his death. He also found that the deceased at the time of his death was aged 40 years, that the monthly income of the deceased was Rs. 250, out of which the dependency of the claimants was Rs. 200 per month. He, therefore, thought it just and proper to award a total compensation of Rs. 26,667 plus costs and interest, by apportioning the same amongst the claimants, as stated in the award.

( 5. ) IN this court also, respondents Nos. 6 and 7 did not put in their appearance to contest the claim. It is also not in dispute that neither respondent No. 6, Narayan, the driver, nor respondent No. 7, Mahendra-singh, the owner, has been examined in this case. Further, it is also not in dispute that the appellant, the assurance company, did not lead any evidence in rebuttal.

( 6. ) LEARNED counsel for the appellant after taking me through the evidence of the eye witnesses, AW-1, Amarsingh, AW-2, Hukma, and AW-3, Bandiya, contended that the negligence of the truck driver in the present case has not been established. He further submitted that in exhibit P-l, which is the roznamcha of Police Station Meghanagar, it has been mentioned that one person, who fell down from the truck, was crushed by the rear wheels of the truck. He, therefore, submitted that from the evidence of these eye witnesses, who have deposed that the dead body of Mathur Kumhar was lying on the middle of the road, clearly indicates that the accident did not occur as pleaded by the claimants, according to whom, while the deceased was going by t