Judgment :- (Civil Miscellaneous Appeals filed under Section 173 of the Motor Vehicles Act, 1988, against the award passed in M.A.C.T.O.P. No.530 of 1992 on 15.10.1997 by the Motor Accident Claims Tribunal, (Additional District and Sessions Court), South Arcot Vallalar District, Cuddalore.) The owner and Insurer of a bus involved in a motor accident have jointly preferred this appeal, challenging the award dated 15.10.1997 passed by the Tribunal in MACTOP No.530 of 1992, on the aspects of negligence and liability. 2. The first respondent herein who is the claimant before the Tribunal, filed a Claim Petition claiming compensation of Rs.75,000/- for his grievous injuries, pain and suffering, medical expenses, transport charges to hospital and nutritious food. 3. According the first respondent/claimant, when he was travelling from Cuddalore to Vridhachalam in the bus belonging to the first appellant herein, the van belonging to the second respondent herein dashed against the particular place of the bus where he was seated, thereby causing grievous injuries in his right hand and right shoulder. He took treatment at Cuddalore Government General Hospital for a period of two weeks as an in-patient. It is his case, the driver of the van and bus are responsible for the accident; hence, the owner of the bus and the van and the Insurers of the vehicles are liable to pay compensation jointly or severally. 4. The second respondent before the Tribunal with whom the van was insured, filed counter before the Tribunal and contended that when the driver of the van was driving steadily and cautiously, the driver of the bus drove the bus in a rash and negligent manner and dashed against the van and hence, the accident occurred only due to the negligence of the bus driver; as such it is not liable to pay any compensation. 5. Similarly, the second appellant herein who is the Insurer of the bus, filed counter contending that it was only the van driver who drove the van rashly and negligently leading to accident and hence, it is not liable to pay the compensation as claimed by the claimant. 6. 5. Similarly, the second appellant herein who is the Insurer of the bus, filed counter contending that it was only the van driver who drove the van rashly and negligently leading to accident and hence, it is not liable to pay the compensation as claimed by the claimant. 6. The Tribunal, after analysing the oral and documentary evidence, held that the driver of the bus and the van are equally negligible and accordingly, made the owner and Insurer of the bus and the van equally liable to pay the compensation of Rs.26,000/- with interest at the rate of 12% per annum from the date of Claim Petition till the date of deposit. 7. Mr. S. Jayashankar, learned counsel for the appellants has contended that the Tribunal has erroneously fastened 50% liability on the appellants when the First Information Report and the judgment of criminal court prove the negligence of the van belonging to the second respondent herein. 8. Per contra, Mr. K. Muthuramalingam, learned counsel for the first respondent/claimant has contended that the Tribunal has rightly held that the driver of the van and bus are equally negligible in driving since even if one of them had effected due care and diligence, the accident could have been avoided. 9. On the other hand, Mr. M. Rajasekar, learned counsel for the third respondent herein, has contended that the negligence fixed by the Tribunal equally on the part of both the drivers is correct since the judgment of the criminal court cannot be relied upon in a claim. In support of this contention he has relied on paragraph 8 of the judgment reported in 1984 ACJ 525 in the case of Shabbir Ahmed & Another V. Madhya Pradesh State Road Transport Corporation and Others and the said paragraph reads as under: "We have gone through the award dated 30.09.1981. The learned Member of the Tribunal has disbelieved the evidence of Sherinkhan (AW 2) mainly on the ground that he was at a distance of about 225 feet from the place of accident. For this, he has relied upon a copy of the judgment of the Chief Judicial Magistrate, Jhabua, in Criminal Case No.385 of 1980, thereby acquitting the respondent No.3 of the charge under Section 304-A, IPC. For this, he has relied upon a copy of the judgment of the Chief Judicial Magistrate, Jhabua, in Criminal Case No.385 of 1980, thereby acquitting the respondent No.3 of the charge under Section 304-A, IPC. The judgment of the criminal court contains a reference to the spot inspection made by the Magistrate himself and on that basis, the Tribunal has discarded the testimony of Sherinkhan (AW 2) as unreliable. Suffice it to say that this approach of the learned Member of the Tribunal is palpably wrong. Firstly, the claimants were not a party to the proceedings in which the spot map was prepared and secondly, the evidence in criminal case cannot be used as a basis for discarding the testimony of a witness recorded before the Tribunal itself. The spot map prepared by the Magistrate has neither been produced nor proved before the Tribunal by the respondents. Such evidence recorded behind the back of the appellants cannot be used against them. (See Ram Dulare Shukla V. M.P.S.R.T. Corporation). A mere production of a certified copy of the judgment of the criminal court containing a reference to such a spot map having been prepared by the Magistrate, is no evidence by itself unless it is proved as a fact. Therefore, this evidence should have been excluded from consideration by the Tribunal. . . . The learned Member of the Tribunal has overlooked the numerous decisions that evidence recorded in a criminal court and the findings arrived at therein should not be used in claim cases. Such evidence for the purposes of claim cases is inadmissible. Above all, it is a settled principle of law that any evidence recorded behind the back of a party cannot be used against him. The learned Member of the Tribunal should not have disbelieved Sherinkhan (A.W.2) merely because he is shown to be at a distance of 225 feet from the place of accident, in the spot-map, which is inadmissible." 10. The learned Member of the Tribunal should not have disbelieved Sherinkhan (A.W.2) merely because he is shown to be at a distance of 225 feet from the place of accident, in the spot-map, which is inadmissible." 10. On the above same contention, the learned counsel for the third respondent has placed further reliance on a decision of a Division Bench of this Court reported in 1995 1 MLJ 317 in the case of Managing Director, Thanthai Periyar Transport Corporation Limited, Villupuram v. Mohammed Jaffer wherein the relevant paragraph reads as under: (para 10) "On the evidence on record, we find that is clear that the accident with respect to which the present petition has been filed by the owner of the van was caused only by the rash and negligent driving of the appellant's bus. In fact, no reliance can be placed by the appellant on the admission made by the driver of the van in the criminal proceedings that he was guilty of rash and negligent driving. What he had admitted before the Magistrate was only that first the van had capsized on account of his rash and negligent driving which would fall under Sec.277, IPC even though no third party was involved in that accident. That will not enable the appellant to contend that the same would bind the owner of the van so as to prevent the owner from claiming compensation for the damage caused to the van by the bus. In fact, the accident by which the van has suffered damage is different and not the same one in which the van had capsized." 11. Heard both sides. 12. In this appeal, the main points which emerge for consideration are that (i) whether the Tribunal is correct in fixing the negligence equally on the part of the driver of the bus and van and (ii) whether the fastening of liability equally on the part of the owner and insurer of the bus and van is correct or not. Since the quantum of compensation awarded by the Tribunal is not agitated before me, I am not traversing on that aspect and accordingly, let me proceed to decide the above issues. 13. Since the quantum of compensation awarded by the Tribunal is not agitated before me, I am not traversing on that aspect and accordingly, let me proceed to decide the above issues. 13. From a plain reading of the judgment of the Tribunal, it can be seen that while fixing the negligence equally on the part of the driver of the van and the bus, the Tribunal has not considered the judgment of the criminal court alone. In the judgment of the Madhya Pradesh High Court relied on by the counsel for the third respondent, the Bench has held that it is a settled principle of law that any evidence recorded behind the back of a party cannot be used against him. Furthermore, a Division Bench of this Court, in its decision referred to above, has observed that no reliance can be placed on the admission made by a driver of a vehicle in the criminal proceedings that he was guilty of rash and negligent driving. By analysing the facts and circumstances of the case, I am of the view that the Tribunal, while fixing the negligence equally on the part of the driver of both the vehicles, has given due consideration to the settled principle of law as held in the above two judgments by relying not only on the judgment of the criminal court, but also on the First Information Report and the Report of the Motor Vehicles Inspector which were marked as Ex.P.1 and Ex.P.2 respectively. 14. From Ex.P.2, the report of the Inspector of Motor Vehicles, it can be seen that the accident was not caused due to any mechanical defect of the vehicles since the accident occurred while they were in running condition. From this, it can be inferred that the accident could have been avoided, had any one of the drivers operated his vehicle in a careful manner. Further, there is no clinching evidence on the side of the appellants herein to prove that the accident happened solely because of the rash and negligent driving of the van driver. 15. Taking the above-mentioned points into consideration, I am of the view that the finding of the Tribunal in fixing the negligence equally on the driver of both the vehicles and consequently, making the owner of the vehicles liable for the act of their drivers, is correct and accordingly, it is confirmed. 16. 15. Taking the above-mentioned points into consideration, I am of the view that the finding of the Tribunal in fixing the negligence equally on the driver of both the vehicles and consequently, making the owner of the vehicles liable for the act of their drivers, is correct and accordingly, it is confirmed. 16. Further, since the insurance coverage for the vehicles was alive as on the time of accident, the two Insurers were also made liable as the owner of the vehicles, to pay the compensation of Rs.26,000/-. In my view, even this finding of the Tribunal is correct considering the fact the insurance policy was existent at the time of accident. Since the findings of the Tribunal in respect of fixing the negligence and liability are confirmed as per the discussion made above, the joint appeal preferred by the owner and Insurer of the bus stands failed and accordingly, it is dismissed with no order as to costs.