JUDGMENT :

Heard Mr. Dinbandhu Singh, learned Advocate assisted by Mr. Santosh Kumar, learned Advocate for the appellants and Mr. Ashok Priyadarshi, learned counsel for the United India Insurance Company Ltd. (respondent no.2) and Mr. Arvind Kumar, learned Advocate for the Bihar State Transport Corporation (respondent no.1).

2. The present appeal has been preferred for setting aside the judgment dated 21.11.2015 and award dated 02.03.2016 passed by the learned Additional District Judge-V- cum-Motor Vehicle Accident Tribunal, Rohtas (hereinafter referred to as ‘the Tribunal’) in M.V. Claim Case No.76/2009, C.I.S. No.193 (C.I.S. No. 193/2013) whereby and whereunder the learned Tribunal has been pleased to dismiss the claim petition filed by the claimants-appellants under Section 166 of the Motor Vehicle Act, 1988 (hereinafter referred to as ‘the Act of 1988’) on the ground of its being not maintainable.

Brief Facts of the Case

3. The claimants in this case are husband and three minor sons of one Kanchan Devi. The case of the claimants is that in a road traffic accident which took place on 27.06.2005 on National Highway No.30 in front of Panditpura, P.S. Dinara (Bhanash), District-Rohtas a bus bearing Reg.No.BR-3P/0257 owned by Opposite Party no.1-Respondent no.1 and insured by Opposite Party no.2-Respondent no.2 crushed Kanchan Devi to death. It is alleged that the bus was driven rashly and negligently as a result whereof the accident took place and 25 years old lady who happened to be the wife of claimant of no.1 and mother of claimant nos.2 to 4 died on spot. A first Information Report being Dinara P.S. Case No.80/2005 dated 27.06.2005 under Sections 279 and 304(A) of the Indian Penal Code was lodged against the driver of the offending bus. The claimants claimed Rs.3,00,000/- for lost of dependency.

4. The opposite party no.2 contested the case on various grounds including one of maintainability of the application under Section 166 of the Act of 1988. The opposite party no.1 did not appear to contest the claim and as such the proceeding was drawn ex-parte against the opposite party no.1.

5. The learned Tribunal framed as many as four issues which are being reproduced hereunder for a ready reference:-

(I) Whether the claim petition as framed is maintainable?

(II) Whether the deceased Kanchan Devi aged about 25 years died on 27.10.2005 on account of rash and negligent driving of Motor vehicles bearing Regd. no. BR-3P/0257?

(III) Whether the claimants are entitled to the compensation as claimed for ?

(IV) Whether the claimants are entitled to any other relief ?

6. Some documentary evidences were also filed on behalf of the claimants such as the certified copy of F.I.R. (Ext.1), certified copy of chargesheet (Ext.2), photocopy of postmortem report (Ext.3), driving license (Ext.4), photocopy of registration book (Ext.5) and photocopy of insurance paper (Ext.6).

7. While considering the issue nos.I and III, the learned Tribunal found that the claimants themselves have stated in paragraph ‘13’ of the claim petition that they had earlier filed a claim case no.77/2005 under Section 140 of the Act of 1988. They had admittedly received a sum of Rs.50,000/- under the order of Additional District Judge-1st-cum-MACT, Rohtas. The insurance company (opposite party no.2) had already paid the amount. The opposite party no.2 was contesting the issue of maintainability on the ground that the claimants having already received the compensation under ‘no fault liability’ principle in M.V. Case No.77/2005, cannot be allowed to maintain a subsequent application after four years under Section 166 of the Act of 1988. The records would show that the present application was filed in the year 2009 after about four years from the earlier application under Section 140 of the Act of 1988.

8. The opposite party no.2 relied upon a judgment of this Court in the case of Veena Devi & Ors. Vs. Ram Nandan Prasad & Ors. reported in 2013 (2) PLJR 123 to submit that based on a cat