The main legal point established in the judgment is the application of the tort of negligence, the duty of care, and the burden of proof for contributory negligence in determining liability and awarding compensation in a motor vehicle accident case.

( 1 ) THE claimants in a motor vehicle compensation case being aggrieved by the judgment and award dated 28. 7. 2001 passed in M. V. C. No. 708 of 1995 on the file of the court of Principal civil Judge (Senior Division) and Addl. M. A. C. T. , Mandya (the M. A. C. T. for short) have preferred this appeal under section 173 (1) of the Motor Vehicles Act, 1988 (for short the Act ). The M. A. C. T. by the impugned award has awarded compensation of Rs. 50,000 along with 9 per cent interest to the appellants under no fault liability and dismissed the claims of the appellants for compensation based on actionable negligence.

( 2 ) THE facts of the case in brief are as follows: On 2. 6. 1995 at about 5. 15 p. m. , the deceased M. R. Vani was travelling on rx Yamaha motor cycle as pillion rider from Mandya towards Mysore on the left side of the road and when they were going near Shambulingeswara Temple, the veil of the deceased was stuck with the back wheel of the motor cycle and on account of that, she fell down. At that time, the lorry bearing the registration No. KL 10- c 5616 came from Bangalore side driven in a rash and negligent manner and ran over the body of M. R. Vani. On the date of the accident, the deceased was hale and healthy and she was employed as typist- cum-receptionist in M. M. Equipments and she was also working as music teacher and was earning monthly income of Rs. 5,000. The claimant Nos. 1 and 2 are father and mother of the deceased whereas the claimant No. 3 is the brother of the deceased and all of them were entirely depending upon the income of the deceased for their livelihood. With the above factual matrix m. V. C. No. 7 of 1995 was filed before the m. A. C. T. claiming total compensation of rs. 15,00,000.

( 3 ) ALTHOUGH the notice was served on respondent No. 1, owner of the vehicle, he remained unrepresented and, therefore, he was placed ex pane. The respondent No. 2, insurance company, put in appearance through its counsel and filed written statement, inter alia, admitting that the vehicle involved in the accident was insured with it on the date of accident but denied all other allegations in the claim petition. It was also contended by the respondent No. 2 that since the claimants have not made the owner and the insurer of the motor cycle as parties to the petition, the petition is bad for non-joinder of necessary parties. It was also contended that the accident occurred due to rash and negligent driving of the motor cycle and in no way the driver of the lorry contributed to the accident and, therefore, the respondent No. 2 is not liable to pay any compensation to the petitioners. 4. On the basis of the above pleadings, the M. A. C. T has framed the following issues:" (1) Whether the petitioners prove that the accident on 2. 6. 1995 took place on account of rash and negligent driving of the vehicle bearing No. KL 10-C 5616 by its driver and deceased sustained injuries and died in the accident? (2) Whether the petitioners are entitled for compensation? If so, what and from whom? (3) What order or decree?"

( 4 ) ON behalf of the claimants, the petitioner No. 1 himself got examined as PW 1 and examined another person, Javaregowda by name as PW 2 and produced 10 documents marked as Exhs. P-l to P-10.

( 5 ) ON behalf of respondent No. 2, no one was examined nor any documents were produced.

( 6 ) THE M. A. C. T. having appreciated the evidence oral and documentary, answered the first issue in the negative and held that the petitioners-claimants are entitled to the compensation only under no fault liability and they are not entitled to compensation under section 168 of the Act inasmuch as they have failed to prove actionable negligence against the driver of the lorry. Hence this appeal by the aggrieved claimants.

( 7 ) WE have heard Mr. Ashok R. Kalyanashetty, learned counsel for the appellants and Mr. A. M. Venkatesh, learned counsel for the respondent No. 1 owner and Mr. S. V. Hegde, learned cou