Judgment U. C. MAHESHWARI J. ( 1. ) This order shall govern aforesaid both the appeals arising out of the joint award and same accident. ( 2. ) The appellants tempo driver and owner respectively filed aforesaid appeals being aggrieved by the award dated 8.5.2003 passed by Third Additional Motor Accident Claims Tribunal (FTC) Betul in claim case No.28/02 and 31/02 which have been passed jointly with other claim cases bearing No.29/02, 30/02 33/02 and 1/2003 arising out of the same accident whereby the claim of the respondent No.l Kantibai (M. A. No. 1735/03) was awarded for the sum of Rs.25,000/- in claim case No.28/02 while the claim of respondent No.l to 3 (M.A.No.1738/03) has been awarded for the sum of Rs.1,87,000/- in claim case No.31/02. They have also been awarded the interest on the aforesaid amount @ 4.5% p.a. from the date of filing their respective claim petitions. As per further findings the cause of the alleged accident was found to be the composite negligence of tempo and alleged offending truck drivers. In pursuance of it 50% liability to indemnify the awarded sum has been saddled against the appellants while remaining liability has been saddled against the driver, owner and Insurance Company of offending truck. M.A. No. 1735/03 is preferred against the award passed in M. C. C. No.28/02 while M.A. No.1738/03 is filed against the award passed in M.C.C. No.31/02. ( 3. ) The facts giving rise to these appeals are that on 28.6.2001 at about 11.30 a.m. the respondent No.1 of M.A.No.1735/03 while the predecessor of respondent No.l to 3 of M.A. No.1738/03 namely Bhaiyalal along with some other persons by boarding the tempo of appellant No.2 driven by appellant No.l were going from Betul Bazar to Betul, on the way the truck bearing registration No.M.H.31- 9672 by towing another truck bearing registration No.MH-31-7116 came from the opposite side in rash and negligent manner driven by respondent No.3 and after passing the aforesaid tempo by front truck the truck which was towed came out from its side and collided with the tempo. Resultantly, respondent No.1 of M. A. No.1735/03 sustained injuries while the Bhaiya Lal the predecessor of respondent No.1 to 3 of M.A. No.1738/03 sustained the injuries and succumbed to it. The injured and dead body of Bhaiya lal were taken to hospital where MIC report and post mortem report were prepared. Resultantly, respondent No.1 of M. A. No.1735/03 sustained injuries while the Bhaiya Lal the predecessor of respondent No.1 to 3 of M.A. No.1738/03 sustained the injuries and succumbed to it. The injured and dead body of Bhaiya lal were taken to hospital where MIC report and post mortem report were prepared. The aforesaid both the trucks were registered in the name of respondent No.4 namely S.S. Amin while same were insured with respondent No.6, National Insurance Company Pvt.Ltd. The front truck, towing the other truck, was driven by respondent Deodas. On receiving the information, FIR was registered against the offending truck and its driver on the same day at P.S.Betul as Crime No.19/01. As per further averments of their respective claim petitions the respondent No.1 of M.A. No.1735/03, Kanti bai W/o Arun Tidgam the claimant sustained the injuries on her head, chest and buttock for which she took the surgical and orthopedic treatment in the hospital. On taking x-ray the fracture of pelvic bone was also revealed. She took bed rest for one and half month under the medical advice. With these averments she preferred her claim for the sum of Rs.5,50,000/- while respondent No.1 to 3 of M.A. No.1738/ 03 by stating that the age of their predecessor was 50 years on the date of his vehicular death and being shoe maker he was running the business of shoes and sandals from which he was earning Rs.4,500/- p.m. and respondent No.1 to 3 were dependent on him. Due to his untimely death they have been deprived from their dependency and also sustained mental agony of it. His wife Maina also deprived from the company of her husband. With these averments they filed their claim for the sum of Rs.13,70,000/-. Besides this in both the claims the interest @ 18% p.a. on the awarded sum are also prayed. ( 4. ) The aforesaid claims were preferred by impleading the truck owner, its driver and insurer, the National Insurance Company along with the appellants, the tempo driver and its owner. ( 5. ) In the Tribunal aforesaid owner of the truck and its driver were proceeded ex-parte while in reply of the appellants it is contended that aforesaid truck collided the tempo because of negligent act of the truck driver. ( 5. ) In the Tribunal aforesaid owner of the truck and its driver were proceeded ex-parte while in reply of the appellants it is contended that aforesaid truck collided the tempo because of negligent act of the truck driver. The towing rod between the trucks was very loose and drivers of both the trucks were under the influence of liquor, no precaution was taken showing the offending truck was towing to another truck. The alleged incident took place because of negligent act of truck driver and there was no fault or negligent on the part of the tempo driver. Hence, they are not liable to indemnify the claims of respondents/claimants. The truck driver,owner and its insurer are liable for the same. ( 6. ) In reply of respondents Insurance Company, it is stated that driver of both the truck are not responsible for the alleged accident. The questioned tempo of the appellants was over loaded with the passengers and also driven in rash and negligent manner by the appellant No.1 and the same was the cause of the accident. The tempo was not insured; therefore, in order to show the sympathy the alleged offence was registered against the truck and its driver and prayed for exonerating it. In alternate it is stated that at the time of accident the alleged vehicles were plied contrary to the terms and conditions of the Insurance Police and without having any duly and effective driving licence. The vehicles were also not properly maintained by their owners and the accident was not reported to the Insurance Company within time. Hence, the liability could not be saddled against it. In any case it was a case of composite negligence of the drivers of truck and tempo both. Hence, the Insurance Company is not responsible to indemnify the entire claim of the respondents/claimants. ( 7. ) In view of the aforesaid pleadings as many as seven issues were framed in both the claims and same were tried along with other claim cases arising out of the same accident with consolidated trial in claim case No.28/02 as stated in para 10 of the impugned award. ( 7. ) In view of the aforesaid pleadings as many as seven issues were framed in both the claims and same were tried along with other claim cases arising out of the same accident with consolidated trial in claim case No.28/02 as stated in para 10 of the impugned award. After recording the evidence on its appreciation by holding that the alleged accident was the cause and consequence of composite negligence of truck and tempo drivers, both the claim petitions were awarded for the aforesaid sum by saddling 50% liability against the appellants and remaining 50% liability against respondents truck owner, driver and its insurance company. Being dissatisfied with the findings of the Tribunal holding the case of composite negligence, the appellants have come forward to this court with a prayer to exonerate them by holding entire liability against the respondents truck owner, driver and its insurer jointly and severally. ( 8. ) Shri P. S. Das, learned counsel for the appellants assailed the findings of the Tribunal holding the case of composite negligence on the ground that the evidence recorded by the Tribunal has not been appreciated in a proper way and 50% liability was wrongly saddled against the appellants. By referring the depositions of the witnesses, he said that any negligent act on the part of the tempo driver has not been proved. On the contrary it has been proved with all probabilities that the alleged accident was only the cause and consequence of rash and negligent driving of alleged offending truck. The criminal case was also registered. On holding investigation it was revealed that the driver of the offending truck was the only person responsible for the accident. In rebuttal inspite having the opportunity no evidence was adduced by any of the respondents. Although the appellants have also not entered into the witness box in order to explain the circumstance in which the accident took place but the passengers of their tempo and injured categorically stated that the alleged incident took place because of the negligence of the truck driver. In rebuttal of it no evidence is adduced either by the insurer or by the truck driver. Even by entering into witness box the truck driver did not explain the circumstance. In rebuttal of it no evidence is adduced either by the insurer or by the truck driver. Even by entering into witness box the truck driver did not explain the circumstance. Therefore, there was no occasion before the Tribunal to hold the case of composite negligence and leveled liability to indemnify 50% awarded sum on the appellants. He also referred the exhibited papers on record and prayed for setting aside the finding of the Tribunal holding composite negligence of the appellants with further prayer to exonerate them from its liability by allowing this appeal. ( 9. ) No one has appeared on behalf of the respondent/claimants and respondents truck owner and driver. ( 10. ) On the other hand counsel for the respondent/insurer by justifying the impugned award said that the same is based on proper appreciation and interpretation of the evidence and also is in conformity with law. It does not require any interference at this stage. He further said that the tempo of the appellants being overloaded was not under the control of its driver, appellant No.l, resultantly, it met an accident, no fault can be attributed against the alleged truck owner, its driver and insurer. In any case the tempo and its driver are equally responsible for the alleged accident as in the facts and circumstances their negligence could not be separated. Therefore, the liability of 50% awarded sum have rightly been saddled against the appellants and they cannot be exonerated from it, and prayed for dismissal of the appeal. ( 11. ) Having heard the counsel after examining the record of both the cases along with the award, I am of the considered view that the Tribunal has committed grave error holding the case of composite negligence and saddling the 50% liability to indemnify the awarded sum on the appellants. My aforesaid view is based on following reasons. ( 12. ) Kanti bai (A.W.1) the respondent No.l of M.A. No.1735/03 and claimant of Claim Case No.28/02 while recording her deposition categorically stated that in the aforesaid accident the tempo was collided by the truck in which she sustained injuries. In her entire deposition including the cross-examination she did not state any fault or negligence on the part of the tempo driver. It is also stated by her that she sat in the tempo at the backside along with other passengers. In her entire deposition including the cross-examination she did not state any fault or negligence on the part of the tempo driver. It is also stated by her that she sat in the tempo at the backside along with other passengers. She categorically denied that tempo was over loaded. She also explained the circumstance in which the truck towing by the offending truck came out from its line and met the alleged accident. ( 13. ) Besides this Ashish Soni (A.W.2), claimant of Claim Case No.29/02, also deposed that by boarding the aforesaid tempo along with his mother he was going to Betul, on the way the offending truck by towing another truck came from opposite side and due to breaking the towing rod the back side truck came out from its line and met the accident with tempo (taxi) in which his mother has also sustained injuries and died. In his entire deposition, I have not found any evidence showing that tempo driver was responsible in any manner for the alleged accident, although he stated in para 9 of his deposition that 13-14 passengers were traveling in it. I deem fit to mention here that tempo of alleged nature had two seats at the back side from front to back on which the passengers are sat by facing to each other, in normal course six persons are sat at one side accordingly 12 persons would have been sat at the back side and including one person and the driver could have sat on the front seat, in such premises if the tempo was plied with 14 persons then it could not be inferred that it was overloaded. ( 14. ) Apart the above, in the deposition of Sundarlal (A.W.1) the claimant of claim case No.30/01, who also sustained the injury in the alleged accident on recording his deposition stated that the offending truck passed from the side of the tempo with short distance but the back side truck which was towing with the front truck came near to the tempo and met the accident. Such deposition of this witness was remained intact in the cross-examination. He did not state that tempo was overloaded. In paragraph 12 he categorically stated that backside truck, by leaving the line came to the roadside and caused the accident. In the same para he stated that 13-14 passengers were travelling in the tempo. Such deposition of this witness was remained intact in the cross-examination. He did not state that tempo was overloaded. In paragraph 12 he categorically stated that backside truck, by leaving the line came to the roadside and caused the accident. In the same para he stated that 13-14 passengers were travelling in the tempo. So the allegation that tempo was overloaded is falsified by this witness. ( 15. ) Another witness Smt. Rohni Pandya (A.W.2) examined in claim case No.30/ 02, is also stated the same thing with slight difference but in cross-examination she stated that 20-22 passengers were sat in the tempo but in view of deposition of other witnesses, the testimony of this witness in this regard does not carry much weight. ( 16. ) The independent witness Manoj Tawde (A.W.2) examined in claim case No.31/02 categorically stated that on the date of the accident he was sitting near Bajrang temple where two trucks were coming from the Bhopal road, the back side truck was towing by front truck, the same were driven in zigzag manner and at the same time one tempo was coming from Betul Bazar at such moment the back side towing truck became unbalanced and met accident by running over the tempo. In such accident one person died on the spot while many got injured. He further said that 6-7 passengers were traveling in such tempo. It is noted that this witness is not related to any of the parties of the case and I have not found any reason to discard his version because his testimony of the chief is remained intact in his cross-examination. ( 17. ) Apart the above the other passengers of the tempo Jaipal (A.W.1) examined in claim case No.1/03 also stated that alleged accident was made by the offending truck while driving the same in rash and negligent manner by its driver. In such accident he also got fracture in his left hand. ( 18. ) In view of the aforesaid evidence, it is apparent that in order to prove any fault and negligence on the part of the tempo or its driver no evidence is adduced on behalf of truck owner, driver and insurer, even in order to explain the circumstance to prove the case of composite negligence the respondent/driver or driver of towing truck are not examined to rebut the aforesaid evidence. Although the appellant have also not entered into the witness box to explain the circumstance but in any case the injured and eyewitnesses of the incident have proved with all probabilities that alleged accident was the cause and consequence of the aforesaid offending truck. I have not found any evidence showing that tempo was on fault in any manner or its driver committed any negligence. Hence, it could not be said that the incident took place because of contributory or composite negligence of tempo driver, appellant No.1. ( 19. ) It is settled proposition of law that every case is decided on the basis of its own fact, circumstance and recorded evidence available on record. Although in the claim cases the papers of the investigation relating to criminal case have some role to draw the inference. Unfortunately, in the case at hand according to papers of criminal case exhibited on record, it has been revealed that aforesaid offending truck and its driver are responsible for the alleged accident. ( 20. ) It appears from the impugned award that the Tribunal for holding the contributory negligence and saddling 50% liability interpreted the spot map prepared by the police during investigation in arbitrary manner, while going through the same in its entirety it is apparent that due to rash and negligence driving of the front side offending truck, the towing truck not only came out from the line of front truck but after meeting the accident it was turned toward Betul side, from which side it was coming. It shows the grave negligence on the part of the offending truck and backside truck and for such negligence only the truck, its owner and their insurer are responsible to indemnify the claim. It appears from the record that both the trucks were insured with the same respondent insurance company. Therefore, in any case the insurance Company along with the truck owner and driver jointly and severally responsible to indemnify the claim. ( 21. ) In view of the aforesaid discussion, the findings of the Tribunal based on spot map prepared by the police is not sustainable and the same is set aside. ( 22. ) Under the aforesaid premises, it is held that it was not the case of contributory or composite negligence; it was out right case the negligence of offending truck and its driver. ( 22. ) Under the aforesaid premises, it is held that it was not the case of contributory or composite negligence; it was out right case the negligence of offending truck and its driver. In pursuance of it, it is held the Tribunal has committed grave error in holding that the alleged incident was the cause and consequence of truck and tempo both. Such findings of the Tribunal are hereby set aside. ( 23. ) In view of the aforesaid discussion by allowing this appeal the appellants are exonerated to indemnify the liability of awarded sum to the respondents/ claimants in the aforesaid respective their claims cases and liability to indemnify the entire sum in both the cases are saddled jointly and severally against the respondents S.S. Amin, the truck owner, Deodas, truck driver and its insurer, National Insurance Company. Till this extent the award of the Tribunal is modified while the other findings are hereby affirmed. ( 24. ) In the facts and circumstances of the case, there shall be no order as to the costs. Appeal allowed.