The MACT has jurisdiction to entertain a claim petition for compensation under the Motor Vehicles Act, even if the claim is based on negligence of the driver or owner of the vehicle. The question of negligence is not to be decided with reference to the conduct of the driver on the road only, but also with reference to his conduct in dealing with the vehicle even prior to its being put on the road.

T.N. Singh, J.

1. Appellants are twosome and their appeal is not time-barred but still continues under M.M. No. 87 of 1982 because counsel who filed the appeal did not file also power. The appeal was not registered but in the mean time, the defect is cured as the power is on record since 18.9.1991. Office is directed to register it as a regular appeal.

2. The two appellants lodged claim in M.A.C.T., Gwalior, claiming compensation for death on 23.4.1982 of Onkar Lal, who was driving the truck No. CPG 348. The deceased was father of the first appellant, minor aged 9 years and second appellant's husband.

3. Admittedly, the vehicle was insured with respondent No. 2, National Insurance Co. Ltd. and it was owned by respondent No. 1, Munnalal. Their claim on the basis of liability for 'fault' has been dismissed and they have to remain satisfied under the impugned order with interim compensation awarded for 'no fault' liability.

4. Mr. Malhotra, the learned counsel appearing for respondent No. 2, persuasive as he always is, has opposed this appeal with full force and vehemence. Several contentions he urged strenuously; these deserve due consideration.

5. Firstly, it is contended that the Tribunal had no jurisdiction to entertain the claim petition and to that effect reliance is placed on Section 19 of the Workmen's Compensation Act. Secondly, it is also submitted that otherwise too the petition was not maintainable at the forum of the Tribunal because there was no case pleaded for rash and negligent driving. Thirdly, the pleading in that regard, in any case, was deficient and fourthly, no evidence has come and none could come on the question of rash and negligent driving because the driver himself died during the incident.

6. Case-law also counsel cited to support his contentions. One is, Jaswant Rai v. National Transport & General Co. Ltd. 1972 ACJ 21 (P&H) and the other, Ashok Kumar Gupta v. Kishanlal 1991 ACJ 702 (MP).

7. In so far as the deficient pleading is concerned, only a word or two would dispel that doubt. At para 4 of the claim petition what I read is that the accident took place because the tie-rod of the front wheel missed a ball owing to which the steering became free.

8. In my view that seminal, pleading was sufficient to sustain the claim for trial at the forum at which that was agitated. Merely because the driver is no more in this world that would not mean that negligence cannot be pleaded or proved. Indeed, the law to be made clear today in the context of the situation of the instant Us is that negligence of the driver or of the owner is pleadable and provable from the moment the driver takes his seat in the vehicle and the vehicle is put on road. It is always the duty of the driver and also of the owner to see that the vehicle taken out for being driven and used on the public road is in a fit condition to be driven and used.

9. Negligence and rash driving are two different things. The question of negligence is not to be decided with reference to the conduct of the driver on the road only. His conduct in dealing with the vehicle even prior to its being put on the road is also to be considered. Particularly in a case when the vehicle used is a public transport vehicle (as in the instant case), the question of fitness of the vehicle is a jural question when raised for decision in a motor accident claim case. For keeping the vehicle fit to be driven and used is joint responsibility and duty of the driver and the owner. Indeed, the owner is required to take out 'fitness certificate' from the statutory authority in due discharge of that duty and the burden is on the owner to establish that when the accident took place, the vehicle was mechanically fit. He may establish that prima facie by producing the statutory fitness certificate for the relevant period.

10. For this short but pointed reason, albeit based on jurisprudence of motor accident claims, I hold that there is no fatal deficiency in the pleading and the claim pe