JUDGMENT B.P. SHARMA, J. 1. The present appeal has been filed against the award of the Court of 2nd Additional District Judge-cum-2nd Additional Motor Vehicles Accident Claims Tribunal Judge, Purnea. By the impugned order the learned Presiding Officer of the Tribunal directed the Oriental Insurance Company Ltd., the insurer of the vehicle which met the accident to make payment of Rs. 1,25,000/- as compensation of the claims. The amount of compensation of Rs. 25,000/- already paid was to be adjusted from the amount of award. The Oriental Insurance Company Ltd. felt aggrieved against the award and filed this appeal. 2. A brief history of the case is that one driver Diwakar Jha had met an accident while driving the vehicle and had died leaving behind his widow and children who were his daughter and son. The vehicle was held by Ashok Singh of village Raikpur within the P.S. Phargama in the district of Araria and the vehicle bearing registration No. BR-11-0327 was insured with M/s. Oriental Insurance Company. The accident took place at Parora Chowk in the district of Purnea on 29.2.1992 at about 9 A.M. A case in this regard was also registered at Kritya Nagar P.S. case no. 238 of 1992 under Section 270 and 338/304 (A) of the Indian Penal Code. It also appears that the claim was not settled by the employer and the present claim petition was filed before the claims tribunal Purnea and the matter was transferred to the Court of 2nd Additional District Judge, who was acting as Motor Vehicle Accident Claims Tribunal under the Act. The claimants have asserted that at the relevant time when the victim died he was under the employment of the owner of the vehicle and he died due to negligence of the driver of the vehicle. So they were entitled to compensastion under the Motor Vehicles Act, 1988. The Insurance Company contested the claim and also asserted, inter alia, that the claim petition was not maintainable and as such the claimants were not entitled to receive compensation in any other case than under the Workmen's Compensation Act. However, the learned lower court did not accept this contention and passed award in favour of the claimants. The Claimants had also stated in the claim application that the deceased at the time of death was about 40 years old and he was on daily engagement getting Rs. However, the learned lower court did not accept this contention and passed award in favour of the claimants. The Claimants had also stated in the claim application that the deceased at the time of death was about 40 years old and he was on daily engagement getting Rs. 40/- per day as remuneration. However, the learned court accepted the age of the deceased to be 50 years at the time of death and after making calculation on the basis of monthly remuneration he came to the finding that the claimants were entitled to a sum of Rs. 1,25,000/- and accordingly, the order was passed. 3. Learned counsel for the appellant submitted that so far as the application of the provisions of the Motor Vehicles Act regarding the compensation is concerned, it does not apply in the present case, because according to the claim application itself the deceased himself was driving the vehicle and the accident was caused due to his own negligence. It was contended that so far as the other passengers of the vehicle are concerned they made claim against the owner and insurer of the vehicle on the ground of their death occurring due to the negligence on the part of the driver and their claims were rightly entertained by the court. The deceased in this case himself met with an accident due to his own negligence. Therefore his heirs and legal representatives and dependants are not entitled to claim compensation under the Motor Vehicles Act. They are entitled to receive the claim under the scheme of the Workmen's Compensation Act only. Therefore, it has been submitted that the award of the lower court is not fit to be upheld. However, the learned counsel for the respondents claimants' submitted that there is provision under Section 167 of the M.V. Act in which a person entitled under the workmen's compensation Act can also lay his claim under the scheme of the Motor Vehicles Act and such claim can be granted. But such a claim can be made only by a person who is entitled under the Workmen's Compensation Act as an employee of the owner of the vehicle and also under the claim of the Motor Vehicle Act not as a person driving the vehicle which met with the accident. But such a claim can be made only by a person who is entitled under the Workmen's Compensation Act as an employee of the owner of the vehicle and also under the claim of the Motor Vehicle Act not as a person driving the vehicle which met with the accident. So far as the deceased in this case is concerned, he was not only an employee of the owner of the vehicle, rather, he himself was the driver of the vehicle and the accident took place due to his own negligence and, therefore, Section 167 of the Act is not applicable in this case. However, it was also pointed out that in the evidence some witnesses have stated that the accident took place on account of negligence of another vehicle and some witnesses have stated that the accident took place due to explosion at the place, but such kind of evidence becomes inadmissible in view of the fact that these are contradictory to the pleading. It was clearly stated in the claim application that the accident was caused due to rash and negligent driving of the driver, that is, the deceased in this case. 4. However, the learned counsel for the respondents also cited a case law reported in 1996 BLJR 335: 1995 (2) PLJR 516 (New India Insurance Company vs. Md. Unus & others). In this case it was held that when the dependant of the deceased driver tiled a claim before the claims tribunal, though they were also entitled to a claim under the scheme of the Workmen's Compensation Act, such a claim can be allowed. But in the case under reference it was clearly stated that the accident took place on account of some mechanical defect in the vehicle, therefore, it was taken to be a case of negligence on the part of the owner of the vehicle. But in the present case it is clear that the accident took place on account of the negligence of the driver (deceased) himself. Therefore this case is distinguishable from the present one. The learned counsel for the appellant also cited two decisions in the support of his contention that in such a case the claimants are not entitled to compensation under Section 167 of the Motor Vehicles Act 1988 corresponding to Section 110A of the 1939 Act. Therefore this case is distinguishable from the present one. The learned counsel for the appellant also cited two decisions in the support of his contention that in such a case the claimants are not entitled to compensation under Section 167 of the Motor Vehicles Act 1988 corresponding to Section 110A of the 1939 Act. One case is V.R. Shanbhag vs. Mohammed Gouse and others (1991 ACJ, 699) in which it has been held by their Lordships of the Karnataka High Court that Section 110A corresponding to Section 166 of 1988 does not create an independent right for any person to claim compensation before the Tribunal. It creates only a special forum and a cheaper and expeditious remedy for a victim of motor vehicle accident to pursue a remedy available to him under common law and the law of Torts. Therefore, the claimant in a case of this kind has to allege and establish actionable negligence on the part of the driver of the vehicle and only in that event he could hold the owner of the vehicle vicariously responsible for the actionable negligence on the part of the driver. It has further been held that the very action of the driver himself is the basis for a claim under this Section, it is needless for us to point out that the driver himself cannot sustain an action under Section 110 of the Act against his owner and insurer arising out of his own action. Another case is New India Insurance Co. Ltd. vs. Meenal & others (1993 ACJ page 522). In this case also their Lordships of the Madras High Court observed that when there is no plea that there was any master and servant relationship between the owner of the car and the said Muthuraman who was driving the vehicle no vicarious liability will arise or can be foisted on the owner. It is further held that when the accident takes place on account of negligence on the part of the driver, the dependants of the driver, the claimants cannot claim compensation against the owner of the insurance for his own fault. These principles have been based on several other decisions including some decisions of the Supreme Court. 5. It is further held that when the accident takes place on account of negligence on the part of the driver, the dependants of the driver, the claimants cannot claim compensation against the owner of the insurance for his own fault. These principles have been based on several other decisions including some decisions of the Supreme Court. 5. However, the matter has come to this Court when claimant claimed compensation before the tribunal under Motor Vehicles Act alleging that the deceased died in course of employment to the owner of the vehicle because of the negligence of the driver. Therefore the claim was not fit to be maintained before the claims tribunal rather it was maintainable only under the Workmen's Compensation Act. The learned counsel for the Insurance Company conceded that had the owner and the insurance been approached by the claimant, they would have been settled the claim and still the Insurance Company is ready to make payment of amount admissible according to the Workmen's Compansation Act. It was also submitted by the learned counsel for the appellant that after this order a review petition to this effect was filed before the claim tribunal, but it was overlooked and dismissed by the learned tribunal. It is, therefore, clarified that the amount which has been awarded by the claims tribunal is not justified and the appellant is also not liable to pay compensation as per the award in this case, in view of the fact that the deceased as a driver has died of his own negligence. However if the present award is set aside and the appeal is allowed the claimants shall be required to run to the owner and the Insurance Company and in case of the delay of payment, can move the Commissioner of Workmen's Compensation. It is to be noted that the accident took place in the year 1992 and the claimants have been pressing their claim uptill now. Therefore, it will be unjust to them to ask them to run to the court of Commissioner of Workmen's Compensation Act. In view of the facts stated above, in this case the award cannot be upheld and the same is set aside. However, the learned counsel for the appellant is also reasonably and fairly agreeing that the appellant Insurance Company is ready to make payment of the amount as per the scheme of the Workmen's Compensation Act. In view of the facts stated above, in this case the award cannot be upheld and the same is set aside. However, the learned counsel for the appellant is also reasonably and fairly agreeing that the appellant Insurance Company is ready to make payment of the amount as per the scheme of the Workmen's Compensation Act. In this connection it was pointed out that under Section 4(1) (c) read with Section 2 of the Workmen's Compensation Act the total income of the deceased shall be Rs. 1000/- per month as he was getting daily wage @ Rs. 40/- per day which comes to Rs. 1200/- per month. It is also further stated that the appellant has no hesitation in accepting that the claim was based on the pleading that the deceased was aged about 40 years at the time of death. It must be observed in this case that the learned lower court has accepted the age of the deceased as 50 years without there being any material available in this case. So the age of the victim is taken to be 40 years and on the basis of the calculation as per schedule 4 of the Act, the total amount of claim in this case comes to Rs. 73,668/-. Out of this amount Rs. 25,000/- has already been paid to the claimants which has to adjusted from the total amount. The learned counsel for the appellant has informed that already Rs. 50,000/- have been deposited in court under the orders of this Court dated 26.7.1996 and the total amount payable to the claimants can be adjusted from this sum in deposit. So far as the interest is concerned it appears that in the present case no interest can be granted to the claimants under Section 40 of the Workmen's Compensation Act. In the result the award of the tribunal is set aside. However the balance amount of Rs. 48,668/- shall be paid to the respondents claimants. They shall be entitled to withdraw the amount of Rs. 50,000/- deposited by the appellant in this case. This appeal is accordingly disposed of. There will be no order as to costs.