JAIBUNBI GULAMBEG Vs. KAMAL PRABHAKAR RENGE

JUDGEMENT

(1.) THE first appellant is the mother while the second appellant, who is a minor is the brother of one Nazirbeg, who died in an accident on 6th December, 1997. The deceased was employed as a driver with the first respondent on a monthly salary of Rs. 2,000/ -. An accident took place at midnight, between the night of 6th and 7th December, 1997 when the deceased was proceeding from Aurangabad to Nagpur in a motor vehicle bearing Registration No. MH-31/5869. The accident took place at village Undri within the jurisdiction of the Police Station of Amdapur in the District of Buldana. The vehicle which was being driven by the deceased is stated to have turned turtle, as a result of which, the driver sustained head injuries which resulted in death. The deceased was 25 years of age when he expired.

(2.) A claim for compensation in the total amount of Rs. 5,00,000/- was made before the Motor Accident Claims Tribunal, Nagpur, under section 166 of Motor Vehicles Act, 1988. An application for payment of compensation on account of no fault liability was also preferred under section 140 of the Act. By the impugned order dated 25th September, 1998, the Claim Tribunal dismissed the claim petition under section 166 of Act. The record and proceedings has been called for and after inspecting the record, both the learned Counsel are agreed in stating before the Court that though an application was made for the payment of compensation on account of no fault liability under section 140 of Act, the application remained to be disposed of and was not dealt with by the Tribunal. The impugned order has been passed without notice to the Insurance Company. The Tribunal held that since the liability to pay compensation under the Act is founded on an action in negligence and since in the present case the deceased was himself driving the vehicle which turned turtle, no other person being involved in the accident, the deceased himself was responsible for the accident. The Tribunal was, therefore, of the view that the deceased was at fault, there being no involvement of any other vehicle. All these findings were arrived at without evidence being adduced in the claim petition. The claim petition was dismissed by the impugned order.

(3.) ON behalf of the appellants, it has been urged that the Tribunal was clearly in error in not considering the application under section 140 of Motor Vehicles Act, 1988, which admittedly was filed on behalf of the appellants. The liability under section 140, it was urged is not founded in negligence. Consequently, once it is established that the death had occurred from an accident arising out of the use of a motor vehicle, the liability under section 140 (1) would stand fastened. Moreover, it was urged that the Tribunal without holding an inquiry as contemplated by section 168 of the Act, dismissed the main petition instituted under section 166 of Motor Vehicles Act, 1988 without notice to the insurer and without granting to the claimanants an adequate opportunity of being heard which would include an opportunity to lead evidence.