The heirs of a driver can maintain a claim petition under the Motor Vehicles Act even if the accident was due to a mechanical defect and not due to the negligence of the driver.

T.S. Doabia, J.

1. The claimants, in this appeal, preferred under Section 173 of the Motor Vehicles Act, 1988, are not satisfied with the quantum of compensation awarded by the Motor Accident Claims Tribunal. They seek enhancement. The amount determined by the Tribunal is said to have been paid to the appellants-claimants. No cross appeal or cross objections have been filed. The respondent New India Insurance Company has thus agreed to abide by the award. Even though no cross-objections have been preferred to this appeal, learned counsel appearing for the Insurance Company has argued that this was a case where in fact no compensation could be awarded at all and he submitted that the question of enhancement would not arise. According to him, claimants are heirs of the driver of the ill fated Tempo. This tempo suffered an accident on account of it being not kept in proper running condition. The question raised is that the claimants could not claim any compensation under the Motor Vehicles Act, 1988 though they could have sought their remedy under the Workmen's Compensation Act, 1923. It is this issue which is also being examined in this appeal. Before doing so, facts in brief be noticed. One Sona Khan, respondent No. 1 is the owner of the Tempo No. CPJ 2975. Mustkim Khan whose heirs are the appellants herein, was the driver. This tempo was on its way from Jora to Morena. At about 9.30 a.m. on 5th December, 1991 this tempo turned turtle. It fell on Mustkim Khan. He suffered several injuries and died before medical aid could be given to him.

2. The Motor Accident Claims Tribunal (for short 'the Tribunal) has recorded the following findings :

(i) That Mustkim Khan died in an accident involving Tempo bearing No. CPJ 2975 on 5-12-1991;

(ii) That the accident did not take place on. account of the negligence of the owner in not keeping the tempo in road worthy condition.

(iii) That the appellants/claimants are the heirs of Mustkim Khan.

(iv) That on account of the failure of the (Gulli) tie and rod fitted in the steering wheel the accident took place.

(v) The owner of the vehicle was remiss in keeping the tempo in road worthy condition and on account of this lapse on the part of the owner, heirs of the driver are entitled to compensation.

(vi) The income of the driver was fixed at Rs. 1000/- per month. It was, however, recorded that he was contributing only 50 percent of the above amount to the family. The multiplier of 14 was applied and compensation was assessed at 84,000/-. The award is silent about loss of consortium.

3. Before considering the legal argument raised by the learned counsel for the Insurance Company, evidence regarding the condition of the vehicle and the circumstances under which the accident took place, be again noticed. The claimants in their claim application merely stated that the tempo in question was not maintained in proper condition and on account of serious mechanical fault, it turned turtle causing the death of the driver Mustkim Khan. The widow when appeared in the witness box made a statement to the effect that there was some defect in the steering of the tempo and that he (driver) had lodged the complaint with its owner. He was on his way to Morena with a view to leave the tempo with its owner. Rashid (P.W. 4) has also testified to the effect that the deceased Mustkim Khan told him that there is some defect in the steering of the tempo and he is going to leave the same with its owner. This witness was in the tempo on that date. He was unhurt. He stated that the deceased did tell to the owner of the tempo that he should get it repaired but the owner did not pay any heed to this. A suggestion was made to this witness that at the time of the accident the tempo was going at speed of 60 to 70 km. per hour. The witness denied this suggestion. Atarsingh Tomar has appeared as P.W. 1. He is an employee of the Police Department attached with Motor Vehicle Branch. He has examined the tempo on 10-12-1991. He submitted h