1. By way of this appeal, the appellants have challenged the judgement and award dated 17.02.2011, passed by the Motor Accident Claims Tribunal, Gondal Camp at Jetpur, in M.A.C.P. No.68 of 2001, whereby the tribunal has dismissed the claim petition filed by the present appellants.
2. The brief facts leading to filing of this appeal are that on 26.11.2000, one vajiben was going on the scooter as pillion rider. While she reached near Ankur Hotel one truck dashed the said scooter. As a result of the said accident Vajiben sustained grievous injuries and and due to which she died. Therefore, the legal heirs of the deceased filed claim petition being M.A.C.P. No.68 of 2001, before the Tribunal for compensation.
2.1. The Tribunal after hearing learned advocates for the respective parties and after considering the evidence on record dismissed the claim petition against which the present appeal is preferred by the appellants.
3. I have head learned advocate for the appellant and perused the record as well as the judgement and award of the tribunal. The tribunal while considering the case of the claimants in paragraph Nos. iii and 11 has observed as under:-
"(iii) I do agree with the L.A. Of the Insurance Company. If we read the judgements, in the case of Yadu Sambhaji More(Supra) and in the case of Kaushnuma Begum(Supra), then it becomes clear that, the facts were entirely different to the facts in the case on hand. The claimants, there, were the third party, absolutely unknown, to the drivers of vehicles. Moreover, the person from whom the compensation was sought for, was also found negligent for the accident. That is not the case here. Moreover, in the case of premlata(supra), Hon'ble the S.C. has clearly held in para 10 of its judgment, that, "Proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine qua non for maintaining an application under Sec.166 of the Act"
Therefore, as per the principle held in the case of Premlata(supra), the applicants are mandatorily required to prove the negligence on the part of the driver, from whom they seek to get the compensation. Therefore, I believe that the applicants can not have any help even from their relied judgements, as above. Therefore, I believe that, when they could not have proved the negligence on the part of the Opp. no.1., their father, they are not entitled to get compensation from him. And so, there is no question of indemnification of such liability of the opp. no.1, as the insured. In view of it, the opp. no.2, the insurance company too, is not liable to pay any compensation. When there is no compensation, there can be no interest upon it. Therefore, the say of the applicants can not be accepted. Therefore, I have replied the issue No.3 and 4 in negative.
11. So, in view of the above all observations and findings it can be said that though the deceased died in the said accident, the applicants are not entitled to get the compensation from the present opponents no.1 and 2. They have not filed the petition claiming the compensation from the truck driver, who was really responsible for the accident and thereby for the compensation...."
4. In view of the above, I am of the opinion that the Tribunal has committed no error in dismissing the claim petition of the appellants. Apart from that learned counsel for the appellants is not in a position to show anything from the record to take a different view in the matter. Therefore, the appeal is devoid of any merits and the same is accordingly dismissed.
[K.S.JHAVERI,J.] pawan Top