Dubey, J. -- 1. This is an appeal under section 173 of the Motor Vehicles Act, 1988 (for short 'the Act') against the award dated 9.2.1996, passed in claim case No. 28/94, by IInd Additional Motor Accidents Claims Tribunal, Bilaspur.

2. The appellants are the legal representatives of the deceased Sunder Singh, aged about 35 years, whe was employed as a driver on monthly wages of Rs. 1,500/- on truck No. CIL 5248 owned by respondent No.1 and insured with respondent No.2. The appellants filed an application under section 166 of the Act to claim compensation of Rs. 5,40,000.00 for the death of Sunder Singh caused in motor accident on 9.11.93 on the averments that the accident was caused due to negligence of the owner of the truck as the truck was 15 years old and was not kept in road worthy condition. Though, the truck had a fitness certificate, but the deceased complained about its condition as on road it used to go of and on out of order. On the fateful day of accident the truck after loading the fire wood of about 30 quintals beyond its capacity was coming from Chiran, Because of the heavy load first one of its tyre got punctured and thereafter near Saraiya barrier its arm bolt got broken its a reosult of which the vehicle did not remain in control, It turned turtle resulting in instantaneous death of the deceased driver, the claim was contested by the respondents.

The respondent No. 1 contended that truck was in good road worthy condition which at the relevant time was loaded with 38 quintals of fire wood only while loading capacity of his truck was 100 qunitals. The deceased used to consume liquor. On the day of occurrence also the deceased was driving the truck after consuming the liquor and, therefore, should not control the steering wheel as a result of which the truck turled down. The accident was caused due to the own fault and negligence of the deceased, hence the claimants-are not entiled to claim any compensation from the employer/owner of the truck. The respondent No.2, the insurer denied its liability to pay compensation. The claimants examined A W. 1 Ramji, the father of the deceased, who deposed that he had also worked as a helper in the truck, the truck was an old truck of 10-15 years, which was not kept in road worthy condition. A.W. 2 Jawar, a co-employee on the truck, who at the relevant time was sitting by the side of the driver, stated that near Kewchi Mal tyre of the truck got punctured which was got repaired. At that time the deceased and he took their meals. Thereafter, they proceeded, when the truck reached near Sarai barrier the arm bolt of the truck got broken as a result of which the steering wheel did not remain in control of the driver, because of that the truck turned turtle In this he fell down on the seat of the driver while Sunder Singh was crushed. He denied the suggestion that Sunder Singh used to consume liquor. He also denied that after taking liquor Sunder Singh was driving the truck. The respondent did not lead any evidence in rebuttal about the condition of the truck and the pleas raised in defance. The Tribunal after appreciation of evidence dismissed the claim holding that the deceased himself was responsible for the accident.

3. Section 167 of the Act, corresponding to section 110 AA of the repealed Motor Vehicles Act, 1939 (for short 'the Act of 1939') gives an option to the person entitled to claim compensation to choose and claim compensation either under Chapter XII of the Act, corresponding to Chapter IV of the Act of 1939. or under the provision of Workmens' Compensation Act, 1923 (W.C. Act). What is prohibited is that the person entitled to claim compensation cannot claim the compensation under both the Acts. It is well settled that if the person entitled elects to claim compensation against a tort feaser under Chapter XII of the Act, he takes the burden upon himself to establish the negligence of the owner of the vehicle. On establishment of negligence, the Tribunal has to d