1. This miscellaneous appeal has been filed by the appellant being aggrieved by the award dated 28.9.2000 passed by the Court of Additional Motor Accident Claims Tribunal, Sabalgarh, District Morena, in Claim Case No.24/97, whereby the Claims Tribunal has awarded a sum of Rs.50,000/- recording a finding that the deceased Jaisingh died because of his own negligence and therefore, the claimants are entitled only to a sum of Rs.50,000/- under the provisions of section 140 of the Motor Vehicle Act.

2. It is submitted by learned counsel for the appellants that this award suffers from legal infirmity inasmuch as there was no material on record to show negligence of the deceased driver Jaisingh. It is submitted that since there is no negligence on the part of the driver and Insurance Company has failed to discharge this burden of negligence of deceased driver- Jaisingh, therefore, the claimants are entitled to the claim amount considering the notional income of the deceased to be even Rs.1,500/- per month, then the award should have been made in favour of the claimants. Learned counsel for the appellants has placed reliance on the judgment of Division Bench of this Court in the case of Chhaya Mishra v. Oriental Insurance Company and Another as reported in, [(2001)1 MPLJ 564]. Placing reliance on this judgment, it is submitted that in the case of Chhaya Mishra (supra), the Claims Tribunal had dismissed the claim of married sister of the deceased driver on the ground that deceased driver was negligently driving the vehicle. Thus, conclusion of negligent driving was arrived at by the Claims Tribunal on the statement of a surviving member in the accident, who had stated that all of a sudden the vehicle got strayed and struck against road side tree.

3. In that case, the Insurance Company had simply filed a written statement, but had not made any effort to lead evidence and there was no suggestion to the surviving member regarding the negligence, therefore, the High Court held that under the facts and circumstances, it could not be held that the accident took place due to rash and negligent driving of the deceased driver and it could be said that the accident took place because of mechanical defect in the vehicle and therefore, awarded a lump sum compensation of Rs.1,00,000/-.

4. On the other hand, learned counsel for the respondent/ Insurance Company has placed reliance on the judgment of the Supreme Court in the case of Tamil Nadu State Transport Corporation v. Natarajan and others as reported in, [(2003) ACJ 1002], wherein the ratio of the judgment is that :-

“If driver of the offending vehicle was himself negligent for causing accident, then employer cannot be held to be vicariously liable for the negligence of the claimant himself.”

5. He has also placed reliance on the judgment of the Supreme Court in the case of Oriental Insurance Co. Ltd. v. Premlata Shukla and others as reported in, [(2007) ACJ 1928], wherein it has been held that-

“Rashness and negligence of the driver of offending vehicle is sine qua non for maintaining claim application. If it is found that driver was not driving rashly and negligently, then the claim is not maintainable against the Insurance Company.”

6. Placing reliance on such judgments, learned counsel for the Insurance Company prays for dismissal of the appeal.

7. Arguments heard.

8. Record perused.

9. It is seen that Insurance Company had filed a written statement denying the claim averments and had alleged that death of the deceased driver- Jaisingh had taken place because of his own mistake and negligence, but none of the witnesses examined by the claimants were given suggestion that Jaisingh died because of his own negligence. There is no suggestion to (PW1) Saroj Bai, wife of Jaisingh, (PW2) Ramraj and (PW3) Uday Singh. Similarly, the Insurance Company had not taken any pains to lead evidence of any of the persons to substantiate it's allegations of rash and negligent driving in the hands of Jaisingh,