Judgment :- Abdul Hadi, J.: This appeal by the 2nd respondent-Insurance Company is against dated 13.9.1984 in M.C.O.P.No.8 of 1984 on the file of Motor Accident Claims Pudhukottai awarding a compensation of Rs.2 lakhs to the respondents 1 to 4 who claimants in the above said M.C.O.P. The said compensation was awarded on account death of one Muthuraman when he himself drove the car MDT.3004 on 5.9.1982 and with an accident which resulted in his death. The 5th respondent herein is the owner said car and the claimants are Muthuraman’s wife, two minor children and his mother. 2. The case of the claimants briefly is as follows: The said Muthuraman was driving the car taking along with him in the said car his relatives and was proceeding in a normal A cyclist, coming in the opposite direction suddenly swerved to the right in front of the In order to avert dashing against him and killing him, the said Muthuraman suddenly swerved his vehicle to the left, thereby brought it down to the mud portion of the road as the road was slippery the vehicle skidded and went uncontrollable and capsized. Due this, the deceased sustained grievous injuries in the lower part of the abdomen and after villagers removed him and other occupants from the car by bringing it to the position, he was admitted in Ponnamaravathi Hospital to which he was carried in a town Immediately on admission he succumbed to the injuries. The accident is only due slippery condition of the road and the deceased was not in any way responsible for same. The first respondent is the owner of the car, the deceased was driver in the car third party, and the insurer as well as the owner are liable to answer the claim. 3. In the light of the discussion, necessary in the present case, there is no necessity setting out the further pleadings. The first respondent in the M.C.O.P. (5th respondent herein) remained ex parte. 3. In the light of the discussion, necessary in the present case, there is no necessity setting out the further pleadings. The first respondent in the M.C.O.P. (5th respondent herein) remained ex parte. The second respondent-Insurance Company (the appellant herein) filed a counter inter alia pleading that there is no actionable claim against Insurance Company, that the accident was caused due to the rash and negligent driving the part of the deceased, that hence the claimants are not entitled to claim compensation, that under Sec.95 of the Motor Vehicles Act (hereinafter referred to as ‘Act’) a policy is required to indemnify the owner only in respect of a liability incurred him, traceable under Law of Torts, and in respect of the death or bodily injury, or damages to the property of a third party, arising out of the use of a vehicle in a public place and the deceased was not a paid driver. 4. The tribunal below has accepted the case of the claimants and has held that the Muthuraman did not drive the car negligently and that there is no contra- evidence on side of the Insurance Company which has simply taken the question of maintainability petition. Then, on the question whether the petitioners before it are entitled to compensation, it has observed that the petitioners before it have not claimed compensation on the ground that the said Muthuraman was a paid driver under the respondent herein, that the claim was not made by the third party against the owner vehicle and the Insurance Company, that, since the car was entrusted to the deceased Muthuraman, he was in possession of the vehicle in the capacity of the owner the vehicle and that hence the Insurance Company is liable to pay the compensation to claimants. 5. Even before considering the submissions of the learned counsel for the appellant, we to see whether the above said claim petition is maintainable at all, even on the very the claim petition itself. It is elementary that for maintaining any action for compensation, the wrong or tort committed by the 5th respondent must be specifically pleaded. But, we find from the claim petition, (the relevant portion of which has been extracted) that it does not show any wrong on the part of the owner of the car, the respondent herein. It is elementary that for maintaining any action for compensation, the wrong or tort committed by the 5th respondent must be specifically pleaded. But, we find from the claim petition, (the relevant portion of which has been extracted) that it does not show any wrong on the part of the owner of the car, the respondent herein. There is absolutely no allegation in the claim petition that the owner the vehicle has committed any tort. Not only there is no plea that the owner committed wrong, there is also no proof to that effect. In fact, P. W.2 the brother of the deceased, was sitting in the front seat of the same car when it met with an accident, and who the only eye-witness to the accident, admitted in cross-examination that it was not a season, that he did not tell P.W.I or his mother about any oil remaining spilt on the said at the said time when the accident took place, that he saw the cyclist at an 80 feet distance, and that the driver did not apply the brake as soon as he saw the cyclist, that there distance of 15 feet between the place where the driver reduced the speed of the car and place where the car hit the tree. Taking the above said evidence of P.W.2 into account, cannot be concluded that the accident was an inevitable one. On the other hand, it concluded that the said deceased himself was negligent in driving the car. 6. Further, there is also no plea that there was any master- servant relationship between owner of the car and the said Muthuraman. In such a case, no vicarious liability also will or can be foisted on the owner the 5th respondent herein. It is also well-settled law when the owner/ insured is not liable, the insurer cannot be held liable. This position accepted by the learned counsel for the claimants. 7. However, the argument of the learned counsel for the claimant is as follows: The driver in having averted hitting against the cyclist and killing him has saved the owner the car from the claim for compensation by the said cyclist or his legal representatives the owner must compensate the present claimants who are the legal representatives driver Muthuraman, who saved the owner from paying any compensation to the cyclist legal representatives. 8. 8. This argument of the counsel cannot be accepted at all. First of all, there is no proof that in order to avoid the alleged liability of the owner, the deceased swerved left. Further the deceased was not driving the car on any errand of the owner. Further has been pleaded itself would also show negligence on the part of the driver himself. he had driven the car slowly and cautiously, he could have easily avoided hitting against above said cyclist. If according to P.W.2, the car after reducing the speed was going kmph speed, easily the driver could have avoided hitting against the cyclist and at the time would not have dashed against the tree. The learned counsel could not also establish that such a claim would be a tortious claim. The learned counsel no doubt relied Carmarthenshre Country Council v. Lewis, (1955)1 All.E.R. 565. But, we don’t think was any application to the present case since in the said case, the owner of the lorry was held liable for the death of his driver who drove the lorry and said to have averted against the child coming on the road. 9. After making the above said argument, the learned counsel went on to make argument taking entirely a different stand, there again, not based on pleading or proof as follows: This was a case of strict or absolute liability as was in the case of Rylands v. Fletcher, L.R. 3 H.L. 330. For this, he contended that the motor vehicle itself was a dangerous coming within the principle of the said liability. He also cited in this connection Gujarat State Road Transport Corporation v. Ramanbhai Prabhabhatbhai, (1987)3 S.C.C. 234 .A.I.R. 1987 S.C. 1690. But there, the Supreme Court only observed thus: “In view of the fast and constantly increasing volume of traffic, the motor vehicles upon the roads, may be regarded to some extent as coming within the principle of liability defined Rylands v. Fletcher, (1886) L.R. 3 H.L. 330.” [emphasis supplied]. 10. But, from this it cannot be concluded that the motor vehicles are always dangerous chattels coming within the principle of the above said liability. Further, here also, there neither plea nor proof that the above said car was such a dangerous chattel which would give rise to the above said strict liability under Law of Torts. That apart in Govindarajulu v. Govindaraja, A.I.R. 1966 Mad. Further, here also, there neither plea nor proof that the above said car was such a dangerous chattel which would give rise to the above said strict liability under Law of Torts. That apart in Govindarajulu v. Govindaraja, A.I.R. 1966 Mad. 332 (D.B.), it was held that the motor vehicles are not such dangerous things. The following observations therein are significant, “...there is ample authority for the view that the lorry is not in itself a nuisance or a hazardous chattel so as to attach the doctrine absolute liability.....At page 665 the learned Law Lord (in (1909)2 KB. 652), has explained to why the rule in Rylands v. Fletcher, (1886) L.R. 3 H.L. 330, would not apply to the ownership of a motor vehicle.” 11. Further in Bishan Devi v. Sirbaksh Singh, A.I.R. 1979 S.C. 496, the Supreme Court has held as follows: “A liability can be cast on another only if he is in any way responsible for the accident which occasioned the injury. In other words there is no scope for any absolute liability on the owner of the vehicle to compensate the injured. The provisions of the Motor Vehicles Act do not contain any statutory provision to that effect. The act does not provide a new right or a new remedy to a person who is injured by an accident. The provisions of the Act do not in any way interfere with the substantive common law on the subject.” This principle is also followed by Kerala High Court in New India Assurance Company Ltd. Raju Markose, 1989 A.C.J. 643. There also it is held that proof of negligence is necessary before owner or the insured can be held liable for payment of compensation in a Motor Accident Claim’s case. There, the accident occurred, before Sec.92-A of the Act which provided for no fault liability, came into force. There also it is held that proof of negligence is necessary before owner or the insured can be held liable for payment of compensation in a Motor Accident Claim’s case. There, the accident occurred, before Sec.92-A of the Act which provided for no fault liability, came into force. It is also explained there that Sec.92 dispenses with proof of negligence in the matter of award of compensation to the extent indicated therein, that the said section indicates that the substantive law is changed only the extent indicated and that, but for the said modification, the substantive law continues be in force and no claim for compensation is sustainable without proof of negligence except to the extent such proof is dispensed with by Sec.92-A. It is also so observed in the Supreme Court decision reported in G.S.R.T. Corporation, Ahmedabad v. Ramanbhai, A.I.R. 1987 S.C. 1690, while dealing with Sec.92-A of the Act in the newly introduced Chap.VII-A of the said Act providing for “no fault liability”. The Supreme Court in the said decision observed follows: “That part of the Act is clearly a departure from the usual common law principle that claimant should establish negligence on the part of the owner or driver of the motor vehicle before claiming any compensation for the death or permanent disablement caused account of a motor vehicle, accident. To that extent the substantive law of the country stands modified.” [emphasis supplied] This passage of the Supreme Court is also referred to in our judgment in K.Nandakumar The Managing Director, Thanthai Periyar Transport Corporation Ltd., Villupuram, C.M.A.No.694 of 1991, dated 20.9.1991 and we have expressed further as follows: “It must be noted here that only to the above extent, the substantive law has been modified in this regard, and not to the extent that, even where the deceased or the injured, as case maybe, is negligent and not the other party, the former can claim compensation. Where the former is negligent, there is no scope at all for himself claiming any compensation from any other party for his owner fault. That is the substantive law. That part of the substantive law has not at all been modified by Sec.92-A of the Act.” 12. Where the former is negligent, there is no scope at all for himself claiming any compensation from any other party for his owner fault. That is the substantive law. That part of the substantive law has not at all been modified by Sec.92-A of the Act.” 12. Further in United India Insurance Company Ltd. v. Kantabai, 1991 A.C.J. 22, that even on general principles it was difficult to entertain the contention that the liability respect of the tort-feasor himself would be covered by the insurance company. 13. Further in Mallika v. Alagarsami, (1981)2 M.L.J. 329:1982 A.C.J. 272, also it has been held that the question of vicarious liability will not arise when the claim is made by the tort feasor himself or any person claiming under the tort-feasor. There, the deceased, his wife and children accompanied the son of the owner in the car. Due to long driving, the driver the car felt tired and the deceased relieved him and drove the car. The car dashed against the tree and the deceased sustained fatal injuries. In that context, this court “in respect of the death or bodily injury to any person or damage to any property of a third party “ should be taken to cover any liability which maybe incurred owner of the vehicle in respect of death or bodily injury to any person or damage property of a third party. The presence of two expressions “any person” and “third party the same provision would indicate that the expression “any person” has been used in sense and not only in the sense of a “third party”. Even if, Sec.95(1) can be construed including the liability of the owner of the car for the death or bodily injury to any person, provision cannot be invoked by the claimants in this case unless the claimants are establish that the owner has incurred a liability in respect of the death or bodily injury deceased which liability has to be insured as per the provisions of Sec.95(1). It cannot that the mere ownership of the car creates liability on the part of the owner of the vehicle pay compensation for the death or injury to any person. The liability can arise only when owner of the vehicle was in anyway responsible for causing the accident which has in that liability. It cannot that the mere ownership of the car creates liability on the part of the owner of the vehicle pay compensation for the death or injury to any person. The liability can arise only when owner of the vehicle was in anyway responsible for causing the accident which has in that liability. In this case, the accident was caused by the rashness and negligence deceased and in such cases there is no legal liability arising either under the law of any other basis under the common law. Only when there is a legal liability, that liability to be insured under Sec.95(1). In this view of the matter, we are unable to agree with learned counsel for the appellants that an absolute liability has been cast on the owner the vehicle to pay compensation under Sec.95(l) and that absolute liability does not depend on the fact as to who caused the accident and whether the owner of the vehicle is negligent or not.” 14. Further in Minu B. Mehta v. Ramachandra Nayan, 1977 A.C.J. 118, the Supreme Court also held that the concept of vicarious liability without any negligence was opposed to basic principles of law. 15. Taking all these into account, we are quite convinced that the present claim by claimants is absolutely misconceived and they cannot claim any compensation from owner of the vehicle and consequently they cannot have any claim against the appellant, Insurance Company. Hence, the order of the Tribunal below is set aside and the appeal allowed. In the circumstances, no costs. In pursuance of this judgment, the appellant allowed to withdraw the amount deposited by it. Appeal allowed.