1. Shri Romesh Singh S/O Shri Bichtter Singh R/O Village Legar, Tehsil Akhnoor District Jammu died on 9-6-2007 in a vehicular accident at Doomi. Smt. Kamlesh Devi Widow of the deceased and his two children-respondents 1 to 3 herein filed claim petition No. 735/2008 under section 166 of the Motor Vehicle Act (hereinafter called the Act) before the Motor Accident Claims Tribunal, Jammu. The claimants also filed "No fault Claim Petiton" under section 140 of the Act before the Tribunal. The claim petitions were opposed by the insurance company-appellant herein on the ground that the deceased was himself a tort feaser in as much as the deceased due to rash and negligent driving of the scooter No. JK02X 1089 on which he was travelling from Jammu to Akhnoor, hit back side of a parked/stationed vehicle No. JK02W 1835 resulting in his death on spot. The appellant-insurance company proposed to place reliane on the final report under section 169 Cr. PC in case FIR No. 65/2007 dated 9-6-2007 whereby the investigation in case FIR No. 65/2007 pertaining to the occurrence in question was closed on the ground that the deceased responsible for the accident and accused in the matter, had died due to the accident for which he was responsible.

2. The Tribunal placed reliance on Para-9 of the claim petition wherein the responsibility for the vehicular accident was placed on driver of Truck No. JK02W 1835. Learned Tribunal while making reference to FIR No. 65/2007 dated 9-6-2007, did not take notice of the fact that the investigation had been closed vide final report dated 9-8-2007. The Tribunal thereafter vide order dated 18-11-2008 proceeded to award Rs. 50,000/- on the principle of "No Fault Liability" under section 140 of the Act.

3. The award/order dated 18-11-2008 is assailed in the present Civil First Miscellaneous Appeal on the ground that the the award/order is against the law and liable to be set aside. The learned Tribunal is said to have not appreciated the law and the facts in right perspective and allowed the LRs of the tort feaser to maintain the claim petition against the insurer. The LRs of the deceased, it is insisted, cannot get benefit out of the act of the deceased, that resulted in his death. The LRs of the deceased, according to the appellant, cannot accuse the deceased of rash and negligent driving and still maintain the claim petition under sections 166 and 140 of the Act. It is pointed out that the award/order made under section 140 of the Act, was subject to the appeal in terms of section 173 of the Act.

4. I have gone through the the record and heard the learned counsel for the parties.

5. Learned counsel for the appellant, elaborating on the grounds urged in the appeal, insists that the Tribunal has erred while passing the award/order impugned in the appeal and has not dealt with the objections raised by the appellant in opposition to the claim under section 140 of the Act. Reliance is placed on the law laid down in United India Insurane Co. Ltd. v. Bhupinder Singh and Others, AIR 1996 J&K 21, General Manager and another v. Tirath Singh, 2006(1) JKJ 189(SC), Oriental Insurane Co. Ltd. v. Jhuna Saha and others, 2007(1) Supreme Today 609, Smt. Yaljlowwa and Others v. National Insurance Co. Ltd. and another, 2007(5) Supreme 144 and Oriental Insurance Co. Ltd. v. Som Raj and others, 2009 (2) JKJ 26. Learned counsel for the respondents on the other hand, insists that section 140 of the Act is clear departure from the settled legal principles that the claimant in order to succeed in the claim petition, has to establish negligence on part of the owner of the motor vehicle, and that there is no basis for the argument that claim under section 140 of the Act can be maintained only if the person who has died or suffered permanent disablement, had not been negligent. The claim under section 140 of the Act, it is insisted, is not to fail merely because there is some doubt regarding the involvement of the driver of the offending vehicle

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