JUDGMENT

1. Appellants preferred this appeal aggrieved by the dismissal of their claim petition by 9th Motor Accident Claims Tribunal, Gwalior, in MACC No.106/2012 on 1.4.2013.

2. In brief facts of the case are that on 16.5.2022 deceased Deepak aged about 25 years by his motorcycle was going to Vijaygarh. When he reached in front of S.R. College Road, respondent No.1 in the ownership of respondent No.2 insured with respondent No.3 came driving Tatapickup M.P.07 L 1711 came rash and negligently and dashed with the motorcycle, due to which, deceased Deepak in injured condition was brought to J.A. hospital. During treatment, he was declared died. Rakesh Jatav lodged a report at Police Station Maharajpura. Respondent No.1 was arrested. After investigation, charge-sheet has been submitted. At the time of accident, deceased used to earn Rs.20,000/- per month by doing milk diary work. Appellant No.1 is his wife. Appellants No.2 and 3 are his daughters. Appellant No.4 and 5 are his mother and father. They were dependent on his income. Due to his death, they are hand to mouth. They are unable to maintain themselves. On their application, notices were issued. Driver and owner remained absent, therefore, exparte proceedings were drawn.

3. Respondent-Insurance Company in reply has submitted that so called offending vehicle has been falsely implicated only to get compensation. In fact, accident has not been taken place by the aforesaid offending vehicle which was insured with him. Accident took place on the rash and negligent driving by the deceased Deepak himself. Beside this, in accident contributory negligence of both the drivers is involved. Respondent No.1 was not having valid licence and respondent No.2 was having permit and witness. In these situation, Insurance Company is not liable to pay the compensation.

4. Learned counsel for the appellants adduced the evidence in their support. Wife of the deceased Saroj, one eye witness Moharman Singh and Ramlakhan. From the side of Insurance Company, statement of head constable Vishram Singh Yadav were placed on record. Learned Tribunal came to the conclusion that appellants-claimants failed to prove that accident took place on 16.5.2012 at 6 P.M. Deceased was taken to hospital,therefore, it became night, hence F.I.R. could not be lodged on the same day. Next day in the morning at 8.30 AM one Rakesh Jatav, brother of the deceased lodged a F.I.R. regarding death of the deceased which took place by unknown vehicle which was driven rash and negligently. He was brought by 108 ambulance. On information, he reached hospital, where the dead body of his brother lying in mortuary. On his report, offence under section 304-A of IPC bearing Crime No.172/12 at Police Station Maharajpura, Gwalior was registered on 17.5.2012. Thereafter, during investigation of the aforesaid crime, after five days of the incident, offending vehicle was identified as Magic Tatapickup M.P.07 L 1711 and it was seized. Respondent No.1 driver of the offending vehicle was arrested. Statement of witnesses were recorded. After investigation, charge-sheet against respondent No.1 under section 304-A of IPC was submitted before the competent Court for trial.

5. It is not disputed that offending vehicle was not insured with respondent-Insurance Company along with evidence of appellant Saroj, evidence of Moharman Singh who was eye witness of the incident as per charge-sheet was adduced. In his evidence, he has stated that on 16.5.2012 when he was going in front of S.R. College, he saw that driver of M.P.07 L 1711 dashed the motorcycle of deceased M.P.07 M.N.0922, due to which, deceased got injury. Thereafter, drive of the pickup ran away from the spot. During cross examination, he denied that he was not present on the spot. He denied that after accident took place, he reached on the spot. During cross examination, he has stated that accident was at 6 P.M. After the accident, 2-3 police personnel came. Police recorded his statement in which