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6. The Tribunal, on appreciation of pleadings and legal evidence on record, has answered the issue No.1, after adverting to the averments of the claim petition and evidence on record, and held that the appellants have not succeeded in proving that Tikaram died because of falling from the tractor-trolley which was driven rashly and negligently by the driver. Issue No.2 was also answered holding that the appellants are not entitled for the compensation as claimed by them for the reason that the finding recorded on the issue No.1 is in the negative.

13. The ground urged by the appellants in this appeal is that the High Court has erred in concurring with the finding of fact recorded by the Tribunal in its judgment on the contentious issue Nos.1 & 2. It is erroneous for the reason that the same is contrary to substantive evidence on record in favour of the appellants and no rebuttal evidence is adduced by the Insurance Company in the case to accept its defence pleas and record the finding on the contentious issue Nos.1 and 2 in its favour. Further, it is urged that both the Tribunal and the High Court have not taken into consideration the relevant indisputed fact that the criminal case is registered against respondent No.1-the driver and respondent no.2-the owner of the vehicle and the charge-sheet is filed against them. Both AW-1 and AW-2 adduced evidence before the Tribunal stating that the deceased son of the appellants was traveling in the trolley of the tractor, it was turned down on account of rash and negligent driving of the offending vehicle by respondent No.1 and he fell down from the trolley and the tractor tyre ran over the body and he sustained grievous injuries and succumbed to the same. Further, it is urged that in the absence of evidence of either the driver or the owner of the tractor and also in the absence of rebuttal evidence on behalf of the Insurance Company in support of its pleadings, the finding of fact recorded by the Tribunal stating that the accident did not take place on account of rash and negligent driving of the offending vehicle by the driver is erroneous, as it has failed to consider the evidence on record in a proper perspective in favour of the appellants. The finding recorded by the Tribunal without appreciating the entire evidence of AW-1 and AW-2 on record, by picking bits and piece of certain sentences from evidence of the witnesses and FIR Exh.1 and answered the contentious issue No.1 against the appellants which approach of it is erroneous, which finding is erroneously affirmed by the High Court, mechanically without re- appreciating the evidence and assigning valid and cogent reasons in support of its conclusion in concurring with the Tribunal. Further, it is contended that the Tribunal has since answered the contentious issue No.1 holding that the death of Tikaram is not due to rash and negligent driving of the tractor by its driver is not proved, it has answered the contentious issue No.2 stating that the question of awarding compensation as claimed by the appellants does not arise and consequently, it has rejected the claim petition, which decision of it is not only erroneouos, but, also suffers from error in law. Therefore, the learned counsel for the appellants has requested this Court to award just and reasonable compensation in favour of the appellants by allowing this appeal.

16. In view of the aforesaid facts, the Tribunal should have considered both oral and documentary evidence referred to supra and appreciated the same in the proper perspective and recorded the finding on the contentious issue No. 1 & 2 in the affirmative. But it has recorded the finding in the negative on the above issues by adverting to certain statements of evidence of AW-1 and referring to certain alleged discrepancies in the FIR without appreciating entire evidence of AW-1 and AW-2 on record properly and also not assigned valid reasons in not accepting their testimony. The Tribunal should have taken into consideration the pleadings of the parties and legal evidence on record in its entirety and held that the accident took place on 19.07.1992, due to which Tikaram sustained grievous injuries and succumbed to the same and the case was registered by the Uniara Police Station under Sections 279 and 304-A, IPC read with Sections 133 and 181 of the M.V. Act against the first and second respondents. The registration of FIR and filing of the charge-sheet against respondent Nos.1 & 2 are not in dispute, therefore, the Tribunal should have no option but to accept the entire evidence on record and recorded the finding on the contentious issue Nos.1 and 2 in favour of the appellants. Further, it should have held that the deceased son died in the tractor accident, driven by first respondent rashly and negligently, but it has answered the above contentious issue Nos. 1 & 2 in the negative and therefore, we have to set aside the said erroneous findings as the Tribunal has failed to appreciate the entire evidence both oral and documentary properly to answer the issue Nos.1 & 2 in the affirmative. From the perusal of the evidence elicited in the cross-examination of AW-1 – the father and AW-2 who reached the spot immediately after the accident, he had seen the accident and narrated that the deceased boy had sustained grievous injuries in the accident and succumbed to the same. The evidence on record proved that the deceased sustained grievous injuries in the accident on account of which he died. The Insurance Company by cross- examining the witness No. AW-2 has categorically admitted the accident, as its counsel had put the suggestion to him the relevant portion of which is extracted above, which portion of evidence clearly go to show that in the accident the deceased died, but the Tribunal has failed to appreciate the evidence of AW-2 and also the documentary evidence referred to supra, while recording the finding of fact on the contentious issue No.1. The counter affidavit of respondent No.1 filed in these proceedings cannot be relied upon by this Court at this stage as he did not choose to appear before the Tribunal, though he had filed statement of counter and neither he nor the Insurance Company adduced rebuttal evidence by obtaining permission from the Tribunal under Section 170(b) of M.V. Act to avail the defence of the insured respondent No.2, as the Insurance Company has limited defence as provided under Section 149(2) of the M.V. Act. But on the other hand, by reading the averments from the paragraphs extracted from the affidavit of respondent No.1, the driver would support the case of the appellants.

18. Point Nos.2 and 3 are answered together in favour of the appellants for the following reasons:-

The Tribunal having answered the contentious issue No.1, against the appellants in its judgment the same is concurred with by the High Court by assigning erroneous reasons and it has affirmed dismissal of the claim petition of the appellants holding that the accident did not take place on account of the rash and negligent driving of the offending vehicle by the first respondent and therefore the contentious issue Nos.1 and 2 are answered in the negative against the appellants and it has not awarded compensation in favour of the appellants.