Manish Pitale JUDGMENT
Manish Pitale, J.
1. By this appeal, the appellants-claimants have challenged the judgment and order dated 09.12.2016 passed by the Motor Accident Claims Tribunal (Tribunal) in M.A.C.P. No. 24/2013, whereby the Tribunal has dismissed the claim petition of the appellants-claimants.
2. In the instant case, on 08.12.2012, the wife of the appellant No. 1, was travelling in an auto-rickshaw, which was given a violent dash from the back side by a truck driven by respondent No. 1. This truck was owned by respondent No. 2 and insured by the respondent No. 3 Insurance Company. The wife of the appellant No. 1 suffered serious injuries in this accident and she died. Crime was registered in respect of the said incident for the offences under Sections 304-A, 279, 337 and 427 of the Indian Penal code.
3. At the time of her death, the wife of appellant No. 1 was working as Headmistress in a school, run by the Zilla Parishad. She was 57 years old at the time of her death. The appellants being the husband, son and mother-in-law of the deceased, filed the aforesaid claim petition before the Tribunal, seeking compensation of Rs. 40,000,00/- along with interest.
4. By the impugned judgment and order, the Tribunal has considered the evidence and material on record and it has rendered a finding that this was a case of composite negligence, yet it has gone on to hold that the claimants failed to prove that negligence was attributable to the driver of either of the vehicles involved in the accident. On that basis, the Tribunal held that the claimants were not entitled to recover compensation from the respondents. Consequently, the claim petition was dismissed and, therefore, there was no discussion or finding rendered on the quantum of compensation to which the appellants-claimants would be entitled.
5. Mr. P.R. Agrawal, the learned counsel appearing on behalf of the appellants, submits that the Tribunal committed a grave error in dismissing the claim petition of the appellants, despite rendering a finding that the instant case was a case of composite negligence. The learned counsel submitted that once such a finding of composite negligence was rendered by the Tribunal, the claimants were certainly entitled to compensation from the owner and Insurance Company of either of the offending vehicles. Since the respondents were parties pertaining to the offending truck, the claim petition ought to have been allowed and the respondents herein should have been directed to pay compensation to the appellants. In this regard, the learned counsel appearing for the appellants has placed reliance on the judgment of the Hon'ble Supreme court in the case of T.O. Anthony vs. Karvarnan and others - MANU/SC/7181/2008 : (2008) 3 Supreme Court Cases 748.
6. The learned counsel appearing for the appellants further submitted that the finding rendered by the Tribunal that the appellants had failed to prove negligence on the part of the respondent Nos. 1 and 2 was unsustainable, particularly when a specific finding regarding composite negligence had been rendered. It was submitted that the said finding regarding failure to prove negligence on the part of the appellants was required to be set aside and that applying the ratio of the aforesaid judgment of the Hon'ble Supreme Court, the appellants were entitled to maintain the claim petition against the respondents herein.
7. On the other hand, Mr. D.N. Kukday, learned counsel appearing on behalf of the respondent No. 3 - Insurance Company, submitted that the finding rendered........