C.S. Dharmadhikari, J.
1. The only question argued in this appeal is that the accident took place because of the negligence of the boy aged about 9 years, the deceased.
2. Shri Varadayya, the learned Counsel appearing for the appellant contended before us that from the recitals in the panchanama as well as in the cross-examination of Kashinath, the only eye witness it is more than clear that the deceased and the tractor were going on the same direction. The deceased was driving the bicycle by catching the truck by one hand. In that process he got a jerk and fell down and therefore the accident took place. It is not possible for us to accept this contention.
3. From the evidence of Kashinath, the only eye witness examined by the claimants, it is quite clear that the deceased was coming from the opposite direction, if this is the position then the suggestion made in the crossexamination and the story put up in the written statement is wholly intrust worthy and cannot be accepted. From the recitals in the panchanama this story is also wholly negatived, as the front wheel of the bicycle had fallen below the trolley in the middle, if the boy was holding the trolley by left hand and was driving the bicycle, then it is impossible that the front wheel of the bicycle will go below the trolley in the middle. In the cross-examination of Kashinath the specific case made out in the written statement was not put up. Therefore the member of the Tribunal was wholly justified in accepting the evidence of Kashinath which gets substantial corroboration in the recitals in the panchanama. It was the case of Kashinath that the deceased boy was coming from the opposite direction and because of the rash and negligent driving of the driver of the truck the accident took place. According to Shri Kashinath by driving the truck rashly and negligently the driver gave a dash to the bicycle. The deceased boy was riding the bicycle on the correct side of the road and the accident took place because of the rash and negligent driving of the truck driver. The specific plea raised by the opponents in their written statement must be on the instructions from the driver of the truck. Unfortunately the truck driver was not examined though available. Therefore an adverse inference could have been safely drawn against the opponents. Therefore taking any view of the matter the learned Member of the Tribunal was wholly justified in coming to the conclusion that the accident took place solely because of the rash and negligent driving of the tractor driver. Therefore we have no hesitation in confirming the said finding. This was the only point raised and argued before us in this appeal.
4. Hence appeal fails and is dismissed with costs. No separate orders are necessary in the Civil Application No. 2427 of 1983. However, in our view an appropriate order will have to be passed by the Tribunal about the investment or payment of compensation amount to the dependants in tune with the guidelines laid down by this Court in Nav Bharat Builders v. Smt. Pyarabai w/o Dadu Mane 984 (2) Bom CR 9 : (1984) ACC 424. Therefore we direct that the Tribunal shall pass appropriate orders keeping in view the guidelines laid down by this Court in the aforesaid judgment.