Prabha Sridevan, J.

1. When the driver is found guilty of negligence and causes his wifes death, can he prosecute a claim for compensation? To what extent is insurance company is liable? These are the questions that arise in this civil miscellaneous appeal.

The deceased Sujatha was travelling in the insured car which was driven by her husband, the first respondent and which belonged to her father-in-law, the 5th respondent herein. The minor daughter, second respondent was also in the car. The deceased was a Doctor in the Primary Health Centre at Narthampoondi. According to the claimant, she was also having private practice. The car was insured by the appellant – Insurance Company. On 05-04-2002, at about 20:30 hours, the first respondent was driving the car from Chennai to Thiruvannamalai. They had a brief halt at Gingee when they were proceeding along the Gingee-Thiruvannamalai highway there was a road curve when the car turned right the steering wheel of the car got stuck and the car drag towards its right and dashed against the road side tree in which all the persons in the car sustained injuries and the deceased succumbed to the injuries. A claim was made for compensation of a sum of Rs.55,00,000/-, which was restricted to a sum of Rs.10,00,000/-. The Tribunal awarded a sum of Rs.19,29,736/-. In the counter it was contended that the accident occurred due to the rash and negligent driving by the first respondent and that the claimants are not entitled to compensation in the Motor Vehicles Act but only under the Workmens Compensation Act. The first respondent was charged under Section 279 IPC and 304 (A) and registered as Crime No.80 of 2002 and the charge sheet was not taken on file by the Judicial Magistrate. The first respondent was working as a Engineer in Jordan and was not a dependent and it was contended that no third party vehicle was involved since their vehicle belonged to the first respondents father who was the policy holder and it was insured with the appellant. Since the accident occurred due to the negligence of the first claimant/respondent he was not entitled to compensation. Since the negligence is not pleaded the claim application is not maintainable. It was denied that the accident occurred due to the poor maintenance of the car. According to the insurance company, the first respondent ought to have been impleaded as a respondent in the claim application since he was the driver.

2. The learned counsel for the appellant submitted that according to the claimants there was a mechanical failure but that is not proved. Unless the owner is held to be liable on account of the negligence either on the part of the driver of the vehicle or due to poor maintenance of the car, the insurance company is not liable since the claim for compensation is basically a tortuous claim. The learned counsel submitted that if there was no negligence on the part of the owner then there is no duty to indemnify for any pecuniary loss sustained by the claimants. The learned counsel submitted that in any event the first respondent who had been guilty of negligence and who had caused the accident which had resulted in the death of his life cannot benefit by his own mistake. The learned counsel submitted that the claim was inflated. The learned counsel submitted that no claim under the Workmens Compensation Act would arise since the son is not a employee of the father. The learned counsel submitted that looked from either way the appeal of the insurance company must be allowed.

3. The respondent also had prayed for enhancement by filing a cross objection. The learned counsel for the respondent submitted that the language of the Section 163-A provides for compensation without proof of negligence and in Oriental Insurance Co. Ltd., Vs. Hansrajbhai V. Kodala (2001 ACJ 827) it is held thus:

"9. The Law Commission of India in its 119th Report in the Introductory Chapter observed [para 1.6] that previously there was recommendatio