THE HON'BLE SRI JUSTICE K.S.APPA RAO CIVIL MISCELLANEOUS APPEAL No.3301 of 2003 JUDGMENT: Aggrieved against the order and decree in O.P.No.422 of 1999 dated 31.03.2003 passed by the Chairman, Motor Accidents Claims Tribunal-cum-Additional District Judge, Adilabad, the appellant-Insurance Company filed the present appeal. Learned Counsel for the appellant-Insurance Company urged that the lower Court having observed that the deceased driver himself was responsible for the accident, fastening the liability on the Insurance Company which is erroneous. He further urged that the claimants failed to prove negligence under Section 163-A of the Motor Vehicles Act, 1988 (for short ‘the Act’) and proof of negligence is an essential ingredient which is not proved by the claimants and, hence, they are only entitled to compensation under Section 140 of the Act for ‘no fault liability’. He relied on Indra Devi v. Bagada Ram[1]a n d New India Assurance Company Limited v. Meenal[2] to urge that the Court cannot award compensation when the vehicle met with an accident due to negligence of the deceased himself. Learned counsel appearing for the respondents-claimants raised an objection stating that the Court can come to the rescue of the litigant if he/she approaches the Court invoking the wrong provision and the Court is bound to do justice by applying correct provision of law. He further urged that though the claimants claimed compensation under Section 166 of the Act, the Court could rectify the wrong provision of law and grant compensation. In support of his submissions, he placed reliance on a decision in Kore Laxmi v. United India Insurance Company Limited[3]. Before going into the merits of the appeal, the factual matrix of the appeal is to be seen. For brevity and better understanding, the parties are arrayed as referred to in the lower Court. The petitioners are the legal representatives of the deceased-Jadi Lingaiah, who died in the motor accident that occurred on 27.10.1998. The averments in the petition are that the deceased while working as a driver of tractor bearing No.AP-1/U- 166 along with trailor bearing No.AP-15/T-1527 proceeded to Jannaram quarry to fetch metal and while returning, the joint of the trailor broken and turned turtled resulting in the instantaneous death of the deceased. In proof of the accident, the petitioners filed Exs.A.1 to A.4. The petitioners did not file the charge sheet in this case. No charge sheet was filed by the police. It seems the investigation was closed on the ground that the accident was due to negligent driving of the deceased himself. Ex.A.2, inquest report, was also to that effect. The lower Court thoroughly discussed the evidence and observed that if the deceased had taken reasonable care and caution in driving the vehicle he would have averted the accident and, therefore, the element of negligence was projected on the part of the driver resulting in his death. Though the lower Court came to the conclusion that the accident was due to the negligence of the driver of the offending vehicle and the deceased was responsible for the accident, the issue was answered in favour of the petitioners and granted compensation. The Court one’s gives a finding that the accident has been caused due to negligence of the deceased alone, it ought not to have awarded compensation on that score. Though granting of compensation under the Motor Vehicles Act is liberal in the interest of victims in the motor accident claims, the same has to be viewed with great caution while awarding compensation. As stated earlier, PW.1 did not file charge sheet. The finding of the lower Court was that the accident occurred due to the rash and negligent driving of the deceased himself. The present claim petition was filed under Section 166 of the Act. For granting any compensation, Section 163-A of the Act strict proof of negligence of the driver involved in the accident to be proved. In the case on hand, the driver himself caused the accident in which he died. Therefore, the petitioners failed to prove the mandatory provisions contemplated under Section 163-A of the Act. As I have stated earlier, learned Counsel appearing for the petitioners urged that the Court can modify the provision of law and pass appropriate orders if the victims filed the claim petitions under wrong provisions of law. The facts in Kore Laxmi (3 supra) are entirely different to the case on hand. The petitioners claimed compensation under Section 166 of the Act. So there is no option for the Court to give a finding under Section 163-A of the Act while evaluating the evidence on record to know as the accident was due to negligent driving of the driver of the vehicle who caused the accident. In the instant case, the driver himself caused the accident. Therefore, the question of altering the provision of law for granting compensation does not arise. In view of the finding of the lower Court that the deceased himself was responsible for the accident, the provisions of Section 163-A of the Act are not proved by the petitioners to get any compensation. The decision rendered by the Apex Court in Indra Devi (1 supra) is squarely applicable to the facts of the case on hand. Therefore, granting compensation to the petitioners under Section 140 of the Act for ‘no fault liability’ is just and reasonable to meet the ends of justice. It is represented by the learned counsel for the petitioners that an amount of Rs.1.00 lakh was deposited by the Insurance Company during the pendency of the appeal and the same was withdrawn by the petitioners and, even if the Court comes to the conclusion that the petitioners are not entitled to compensation, the amount already withdrawn may not be ordered for recovery. In the present set of circumstances, while taking into consideration the family background of the petitioners, as seen from the cause-title and as represented by the learned counsel for the petitioners, it is ordered that recovery of an amount of Rs.1.00 lakh, which had already been withdrawn by the petitioners, shall not be effected. Accordingly, the appeal is allowed and the order of the lower Court is set aside. No order as to costs. K.S.APPA RAO,J Dt:04.02.2011 usd [1] 2010 ACJ 2451 [2] 1993 ACJ 522 [3] 2003(6) ALD 182(DB)