IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE FIFTEENTH DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY M.A.C.M.A.No.480 of 2006 Between: 1.Smt.Patnam Parvathamma and 4 others. ..... Appellants AND 1 Bala Raju and another. .....Respondents Counsel for the Appellants: Mr.Mohd. Yousuf Counsel for Respondent No.1: None appeared Counsel for Respondent No.2: Mr.Kota Subba Rao The Court made the following : Judgment: This Motor Accidents Civil Miscellaneous Appeal arises out of award, dated 06-02-2006, in MVOP.No.344 of 2002, on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Mahabubnagar, (for short ‘the Tribunal’), whereby the Tribunal dismissed MVOP.No.344 of 2002, filed by the appellants. Heard Sri Mohd.Yousuf, learned Counsel for the appellants, and Sri Kota Subba Rao, learned Standing Counsel for respondent No.2. The husband of appellant No.1 and the father of appellant Nos.2 to 5, by name Patnam Krishnaiah, died in an accident on 13-08-2001. On the fateful day, the deceased was travelling sitting on the back seat of the car, bearing registration No.AP 28 T 9591, owned by respondent No.1. There is not much dispute over the manner of the accident. The deceased appeared to have slept off and in his sleep, he evidently leaned against the back door, which got opened resulting in his instantaneous death. The fact of death of the deceased came to light when one Parashuramulu lodged a complaint in Addakal Police Station. The appellants initially filed the OP under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act’). Later on, they have amended the OP, by making a claim under Section 163-A of the Act. Before the Tribunal, appellant No.1 filed her affidavit-evidence as P.W.1 and the affidavit-evidence of one Thota Krishnaiah as PW.2, who was, admittedly, the eyewitness. The only ground, on which the appellants’ claim for payment of compensation was rejected, was that the death occurred on account of the deceased’s own negligence, and therefore, the claim for compensation cannot be allowed. The Tribunal placed reliance on a Division Bench Judgment of the Karnataka High Court reported in Appaji (since deceased) and another vs. M.Krishna and another[1] in holding that even if there is no negligence on the part of the driver of the vehicle, the appellants are not entitled to claim compensation, because, the death has occurred on account of the negligence of the deceased. In coming to the conclusion that the death has occurred on account of the deceased’s own negligence, the Tribunal has compared the evidence of PW.2 with his version made before the Police. The Tribunal found that there were embellishments in the evidence of PW.2 as to the factum of negligence on the part of the driver of the car, in which the deceased was travelling. Though the Tribunal has not, specifically, discussed the statement of PW.2 made before the Police, obviously, the said statement was referable to the statement given by him before the Police at the time of conducting inquest. Even though PW.2 may not have stated before the Police that the deceased has fallen off the car, while sitting on the rear seat, on account of the rash and negligent driving of the driver of the car, as was testified by him before the Tribunal, it is neither the case of the respondents nor the Tribunal has found from the record that PW.2 had ever made a statement that the deceased has fallen off the car of his own negligence. Unfortunately, the Tribunal has made a perfunctory approach in assuming that there was no rash and negligent driving on the part of the driver and that as the door was not properly shut, the same should be attributed to the deceased. The Tribunal has not undertaken any discussion with reference to the material available on record whether the deceased was aware of the fact that the door was not properly shut and that whether he has slept on the back seat and fallen on the door with full knowledge that it was not shut properly. Under Section 163-A of the Act, the victim or his legal representatives need not prove wrongful act or negligence or default on the part of the driver of the vehicle. The question whether a claim for compensation can be allowed in a case of one’s own negligence or default is subject matter of divergent opinions. While a Division Bench of the Karnataka High Court in Appaji’s case (1 supra) held that such a claim is not maintainable, a contra view was taken by a Division Bench of Gujarath High Court in New India Assurance Co., Ltd., vs. Muna Maya Basant[2]. In the instant case, the need for pronouncing the opinion of this Court on this issue is obviated because there is nothing on record to show that the accident has occurred on account of the negligence of the deceased. Even if the reasoning of the Tribunal is pursued to its logical end, it would only go to show that the back door was not properly closed. RW.1, who has given his affidavit-evidence, has merely alleged that the entire negligence lies on the part of the deceased. He has not specifically testified that the deceased was responsible for the door of the car not being closed properly. Generally, it is the responsibility of the driver of the car to ensure that all the doors of the car are properly closed, before moving the car while undertaking the journey. In the absence of any evidence, whatsoever, which points to the negligence on the part of the deceased, the Tribunal is not justified in surmising that the accident has occurred on account of the negligence of the deceased. In this view of the matter, the order under appeal is set aside and the matter is remitted to the Tribunal for adjudication of M.V.O.P.No.344 of 2002 on merits with regard to the quantum of compensation payable to the appellants in terms of Section 163-A read with Schedule II of the Act. Since the OP is of the year 2002, the Tribunal is directed to dispose of the same within a period of two months from the date of receipt of a copy of this judgment. The Motor Accidents Civil Miscellaneous Appeal is allowed accordingly. ___________________________ (C.V.NAGARJUNA REDDY, J) 15th February, 2010 lur [1] 2004 (2) ACJ 1289 [2] 2001 ACJ 940 (Gujarath)