( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO. 1232 OF 2006 New India Insurance Co. Ltd., through its Divisional Manager, Adalat Road, Aurangabad. APPELLANT VERSUS 1. Janardan s/o Laxman Dhas, R/o Mulukwadi, Tq. & Dist. Beed. 2. Badambai w/o Janardan Dhas, R/o as above. 3. Ramkrishna s/o Daulatrao Bhad (Appeal dismissed against this respondent, as per Court’s order dated 01-02-2010) RESPONDENTS ..... Mr. S.G. Chapalgaonkar, advocate for the appellant. Mr. A.G. Dalal, advocate holding for Mr. V.D. Salunke, advocate for the respondents No. 1 and 2. ..... [CORAM : K.U. CHANDIWAL, J.] [DATE : 20th April, 2010] ORAL JUDGEMENT : 1. Heard learned counsel. ( 2 ) 2. Admit. 3. The appeal is finally heard, with the consent of learned counsel for the parties. 4. The award in M.A.C. Petition No. 143/2002, passed by the learned Member, M.A.C. Tribunal, Beed, dated 17-07-2006, is assailed by the appellant – Insurance Company, on following grounds. (a) The accident being between two vehicles, a head-on-collision, was it not necessary for the claimants to implead the truck driver, owner and the Insurance Company of the offending vehicle being truck registration No. WB-73/7834 ? (b) Whether it could be within the realm of the learned Tribunal to award against the appellant/Insurance Company and the canter owner, to fasten liability in terms of section 147 of the Motor Vehicles Act ? ( 3 ) After extensively hearing both the counsel, the above questions posed warrant their answers in favour of the appellant, for the following reasons. 5. On 1st March, 1999, Haridas – deceased, 25 years old, was driving the Canter, bearing registration No. MH-03/N-1101 has passed Murtijapur near Navsal phata (crossing) on Amrawati-Akola road, and had head-on- collision with the offending truck, bearing registration No. WB-73/7834, coming from Amrawati side. 6. While deciding the points indicated above, age of the deceased and ultimate award of Rs. 4,10,000/- need not be dissected in detail. It is most unfortunate for the claimants that without assigning any reasons, they omitted to sue the driver, owner and the Insurance Company of the truck bearing registration No. WB-73/7834. The fact remains that claimants having committed blunder, by lodging the claim only against the owner of the Canter vehicle and the Insurance Company (appellant) could be just. Mr. Dalal though referred to section 147 ( 4 ) and Proviso thereto of the Motor Vehicles Act coupled with section 147 (5) of the Motor Vehicles Act, 1988; however, the fact situation in legal frame cannot be ignored. The liability to meet the claims for self loss is certainly tortuous. The provisions of section 166 of the Motor Vehicles Act operate only in the case of negligence. For the self negligence, liability could not be and should not be fastened to the owner of the vehicle and by an indemnification to the Insurance Company. This is not the purport and the scheme of the Act. Before the master could be made liable, law is settled, it is necessary for the claimant to prove that the servant was acting during the course of employment and that he was negligent. The corollary would be that negligence would have to be branded to deceased Haridas and the result is, no claim in terms of section 166 of the Motor Vehicles Act or section 110A of the Motor Vehicle Act, 1939 is maintainable. 7. In the result, I hold, the finding of the learned Member, M.A.C. Tribunal, fixing the liability against the appellant/Insurance Company or owner of the ( 5 ) Canter vehicle, was in contrast to section 147 of the Motor Vehicles Act. Notwithstanding the dismissal of the claim, the remedies of the claimants under Workmen’s Compensation Act, 1923 need not be scuttled. Hence order. ORDER The appeal is allowed. The award of the learned Member, M.A.C. Tribunal, Beed, dated 18th July, 2006 in M.A.C. Petition No. 143/2002 is set aside. The amount of Rs. 1,50,000/- withdrawn by the claimants pursuant to the order dated 09-03-2007, be reimbursed to the appellant/Insurance Company, within six months. The appellant to receive the balance amount lying in this Court. 9. In view of disposal of first appeal, the civil application No. 10471/2006 does not survive and hence, stands disposed of accordingly. [ K. U. CHANDIWAL ] JUDGE NPJ/fa1232-06 ( 6 )