( 1. ) THIS appeal has been preferred by the unsuccessful claimants in Claim Case No. 4 of 1976 before the Motor Accidents Claims Tribunal, Rajnandgaon, decided on January 16, 1978. The evidence has been recorded in Claim Case No. 4 of 1976 and the main award with reasoning is also passed in that case. Out of that accident, Claim Cases Nos. 2, 3 and 7 of 1976 were filed and disposed of by the said award.

( 2. ) THE appellants had claimed compensation amounting to Rs. 1,78,000 on account of an accident which occurred on November 23, 1975, on Khairagarh-Rajnandgaon road to bus No. CPS 8937 belonging to the non-applicant-respondent No. 1 and insured with the non-applicant-respondent No. 2. M. A. Gani and two others died in the said accident. The applicant-appellant No. 1 is the widow and other applicants-appellants are the children of late M. A. Gani.

( 3. ) LATE M. A. Gani was aged about 49 years on the date of the accident and was travelling in the bus No. CPS 8937 from Chhuikhadan to Rajnandgaon occupying the seat immediately at the back of the driver. He was an employee of the Bhilai Steel Plant.

( 4. ) THE learned presiding judge of the Motor Accidents Claims Tribunal, Rajnandgaon, dismissed the claim holding that the said accident did not take place due to any rash or negligent act on the part of the driver or the non-applicant No. 1. It was further held that the accident took place due to the bursting of the tyre of the right front wheel when the vehicle was being driven at the speed of 60 km. per hour. It was held that the accident was inevitable ; hence no liability of the non-applicants-respondents.

( 5. ) IT is stated by the claimants that Ramkrishna Patil was driving the said bus and Noor Mohammed was its conductor at the time of the accident. Due to the speed of the bus, after the bursting of the tyre, the driver lost control and it went about 100 yards ahead and collided with a mahua tree at about 4. 30 p. m. near village Dalli about 14 1/2 km. away from Khairagarh towards Rajnandgaon. The driver of the bus was also amongst the deceased persons. It is also stated that the tyre of the front right wheel of the vehicle was an old worn out one which burst due to the bad road and high speed. The vehicle could not be controlled by the driver thereafter. The negligence of the company was in not fixing a new tyre or such a tyre which should have been used on such road coupled with the speed with which the vehicle was driven. ( 6. ) NON-APPLICANT No. 1 had denied the allegations of the applicant-appellants and stated that the speed was not above 60 km. per hour. The speed was moderate and as such the bus was within the control of the driver. It was also denied that the tree with which the bus collided was about 100 yards away from the place of bursting of the tyre. It was also denied that the tyre was old and worn out. It was stated that the bursting of the tyre was only an accident for which non-applicant No. 1 could not be held liable. The bus was being driven cautiously with moderate speed. The driver tried his best to save the lives of all the passengers and in doing so, lost his own life. It has also been pleaded that there were stone quarries in the vicinity of the road. Bullock carts and trucks carrying stones occasionally dropped some stones on the road which could be the cause of bursting of the tyre. Thus, the accident was claimed to be inevitable.

( 7. ) THE case of non-applicant No. 2 is that of denial except that the bus was insured with non-applicant No. 2. It was stated that the liability, if any, is statutory, covered under the insurance policy.

( 8. ) THE learned judge of the Motor Accidents Claims Tribunal accepted the defence of non-applicant No. 1 and dismissed the claim.

( 9. ) LEARNED counsel appearing for the claimants-appellants relied on the case, Minu B. Mehta v. Balakrishana Ramachandra Nayan [1977] 47 Comp Cas 736 ; [1977] ACJ 118 (SC) and urged that in order to succeed in a defence that the a