JUDGMENT
A.M. Sapre, J.
1. This is an appeal filed by the claimants under Section 173 of the Motor Vehicles Act against an award dated 16th April, 2002 passed in Claim Case No. 4/2001 by 3rd M.A.C.T., Ratlam (Camp. Jaora).
2. By the impugned award, the Tribunal was pleased to allow the claim petition filed by the claimants and awarded a total sum of Rs. 3,78,000. However, apportioning the liability to the extent of 50% on the ground of contributory negligence, the compensation eventually payable by both Insurance Companies was Rs. 1,89,000 and accordingly and in consequence thereof an award was passed for a sum of Rs. 1,89,000 against the respondents i.e., non-applicants. It is this award which is sought to be challenged by the claimants before this Court in this appeal.
3. Facts in brief are these:
In the mid-night of 2nd September, 2000, Poonamchand who was driver of bus bearing No. MP-43-F-0011 while driving this vehicle dashed with a stationary vehicle truck bearing No. UP-78-T-2752. This led to his death giving rise to filing an application by the present appellants who are the claimants i.e., wife and children of deceased Poonamchand.
4. The claim petition was filed under Section 163A of the Motor Vehicles Act claiming compensation on the principles underlying under Section 163A (ibid). The driver, owner and Insurance Companies of both the vehicles involved were sued as non-applicants. The claimants only examined the wife of Poonamchand i.e., Ramkanyabai, to prove the claim. No body was examined on behalf of the respondents i.e., non-applicants.
5. By the impugned award, the Tribunal held that claimants are entitled to claim a sum of Rs. 3,78,000. However, in the opinion of Tribunal it was a case of contributory negligence attributable to both i.e., Poonamchand i.e, the driver of the bus and the driver of other stationary truck with whom the bus of Poonamchand dashed. On this basis, it was held that both were liable to the extent of 50% and, therefore, relying upon the principle of contributory negligence the compensation was apportioned to Rs. 1,89,000. Accordingly this amount was directed to be recovered from both the Insurance Companies of two vehicles in the ratio of 50% each. The Tribunal also held that this is not the case falling under Section 163A (ibid) but it is a case fatting under Section 166 (ibid). As stated (supra), it is this determination which is sought to be challenged by the claimants in this appeal.
6. Heard Mr. Manish Jain, learned Counsel for appellants, Mr. H.G. Shukla, learned Counsel for respondent No. 3 and Mr. P.K. Gupta, learned Counsel for respondent No, 5.
7. Having heard learned Counsel for the parties and having perused the record of the case, we are inclined to allow this appeal thereby modifying the award as indicated infra.
8. In our opinion, the Tribunal was not right in holding that the claim petition was not filed under Section 163A (ibid) but was essentially filed under Section 166 of the Act. In our opinion, the application should have been held to have been filed under Section 163A (ibid) only and should have been accordingly dealt with Firstly, mere perusal of the application filed by the claimants out of which this appeal arises shows that application in question was undoubtedly made under Section 163A (ibid). Under these circumstances and in this view of the matter, the application ought to have been treated and was in fact treated to some extent as having been filed under Section 163A (ibid).
9. So far as the finding in regard to contributory negligence is concerned, we cannot countenance it. When an application is made under Section 163A (ibid), one is not required to examine the negligence part of the parties. In other words, in an application made under Section 163A, the Court is not required to examine the issue relating to negligence but what is required to be seen is whether the accident has occurred out of the use of the motor vehicle, as described under Section 163A (ibid) This issue was answered in favour of the claimants by the Tribunal. Once this finding is recorded by the Tribunal in favour of the claimants then there was no necessity for the Tribunal to have examined the question of contributory negligence on the part of the drivers of the two vehicles and then recorded a finding of 50% negligence inter se. Even otherwise there was absolutely no basis nor any evidence to record the finding of contributory negligence. It is an admitted fact that there was no eye-witness to the incident. Secondly, none of the non-applicants entered in the witness-box and led evidence. So, there was no evidence so far as the nature of accident and how it occurred was on record. In this view of the matter there was no basis nor any foundation led for recording a finding of contributory negligence and then reducing the contribution to the extent of 50% on the basis of principle of contributory negligence of both the drivers.
10. Accordingly and in view of the aforesaid discussion which alone, in our opinion, is necessary, we ate inclined to allow the appeal and while holding that the application out of which this appeal raises was filed under Section 163A (ibid), we up set the finding of the Tribunal by holding that there was no case made out for holding both the drivers to be negligent in driving their respective vehicles.
11. So far as filing of cross-objections by the Insurance Companies i.e., respondents herein is concerned, we do not find any merit in the cross-objections, as in our opinion, the same have no foundation. Even otherwise, the Insurance Companies have got no right to challenge any finding except those which are recognised under the Motor Vehicles Act. The finding which is sought to be challenged in this case is not such which can be made basis to challenge. Moreover in view of the fact that this Court has gone into evidence and has already upset the finding of the Tribunal, the cross-objections have got no merit. Accordingly, the cross-objections filed by respondent Nos. 3 and 5 are found to be devoid of merit and the same are accordingly rejected.
12. In the result, this appeal succeeds and is hereby allowed. The impugned award is modified to the extent indicated above. The claimants are. therefore, held entitled to receive a sum of Rs. 3,78,000 as already determined by the Tribunal in favour of the claimants. The amount shall be recoverable from both the Insurance Companies in equal proportion. Counsel fee Rs. 1,000, if certified.