1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR ORDER S.B. Civil Misc. Appeal No. 1666/2000 Prabhu Dayal vs. Syam Sunder Sharma & Anr. Dated : 01.10.2009 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Arun Sharma, for the appellant. Mr. Virendra Agarwal, for the respondent. Challenge in this appeal is to the judgment and award dated 7th March, 2000 passed by the Motor Accident Claim Tribunal, Ajmer whereby, learned Tribunal dismissed the claim of the appellant. 2. The nub of the appellant story is : That on 24.09.1990 the claimant- appellant Prabhu Dayal was going from Delhi to Chittorgarh by Mahindra Jeep RJ 27-0140. He being driver was driving this vehicle. It is alleged that at about 3:00 pm, the road on account of rains became slippery, as a result of which the Jeep overturned and fell in a pit near Nasirabad. This accident resulted in the head injury and paralytic attack to the claimant and the death of one Balu. The appellant filed a claim of Rs. 19,10,202.37, which after conclusion of trial, was dismissed as indicated hereinabove. Hence, this appeal. 2 3. Learned counsel for the appellant has canvassed that the learned tribunal dismissed the claim on the ground that the claimant himself was driving the vehicle in question and the vehicle overturned on account of his own negligence and rash driving. Learned counsel has further contended that the learned Tribunal based the judgment merely on the documents filed in a criminal case and the facts of the instant case were not taken into consideration. Learned Tribunal has erred in holding that the claimant himself was responsible for the accident and he was not entitled for any compensation, whereas, facts emerging in the instant case are altogether different. The vehicle overturned not because of the negligence of the appellant but it overturned on account of heavy rains which made the road slippery. In support of his argument, the learned counsel has cited one judgment of National Insurance Co. Ltd. vs. Prembai Patel & ors. reported in Supreme To-day Part 69-2005(3) 587. 4. Learned counsel for the respondent has vehemently opposed the submissions made by the learned counsel for the appellant and contended that claim petition was filed before the Tribunal under Section 166 of Motor Vehicles Act. Section 166 of Motor Vehicles Act envisages thus: “166. Application for compensation. (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made-- (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be: 677 Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made 3 on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.” 5. Learned counsel has further submitted that the claimant-appellant himself was the driver of Jeep and under Section 166 of Motor Vehicles Act, the application for compensation could only be filed by the third party. The driver himself was a wrong doer and no person is entitled to get any benefit out of his own negligence, hence, the appeal deserves to be dismissed. 6. Having considered the submission made at the bar and carefully perused the relevant material available on record, it is noticed that claimant-appellant filed the claim petition under Section 166 of Motor Vehicles Act before the Tribunal. The argument advanced by the learned counsel for the appellant that the vehicle overturned because of heavy rains which made the road slippery, does not appeal to the reason nor to the conscience of the court. The court cannot sit in oblivion to the reality. Learned Tribunal has critically examined the evidence of the appellant and carefully analyzed the facts and circumstances of the case and rightly inferred that the vehicle in question overturned on account of sole negligence of the driver himself and neither it overturned because of the rains which made the road slippery nor was it a vis major. The judgment cited by the learned counsel for the appellant is not applicable to the facts and circumstances of the 4 case and does not assist him to his benefit. The impugned judgment is just and proper and the finding arrived at by the learned Tribunal is cogent and well merited with which I fully concur. I do not find any substance in appeal. 7. For these reasons, the appeal being bereft of merits stands dismissed. (MAHESH BHAGWATI),J. Mak/- 12