Hon'ble TRIPATHI, J.—On the last occasion i.e. 1st July 2010, learned advocate Mr.Darji appearing for respondent No.7 was granted time to find out as to whether the award is executed or not, because the present First Appeal is filed by the appellant - New India Insurance Company Limited challenging the award on a limited ground that, 'the motorcyclist, who was insured by the appellant Company is held liable for contributory negligence to the extent of 10%. Learned advocate Mr. Darji states that the award is already executed qua the other Insurance Company and only 10% of the award amount which is to be paid by the present appellant - Insurance Company remains unpaid. Learned advocate Mr.Majmudar for the appellant Company submitted that the present Appeal is filed challenging the finding recorded by the Hon'ble Tribunal on the aspect of contributory negligence. To the extent of 10% negligence is attributed to the motorcyclist. Learned advocate for the appellant invited attention of the Court to issues framed in M.A.C.P. No.76/2006. Issue No.1 reads as under: "Does it prove by the petitioner that the accident occurred due to rash and negligent driving of the driver of the vehicle No.GJ-14-U-4694 involved in the accident." This aspect of negligence is discussed by the Tribunal in paragraph 10. Paragraph 10 reads as under: "So far as negligence aspect of the present claim petition is concerned, the legal heir of the deceased Rafiqbhai i.e. Hamidaben has narrated the facts regarding the accident in her affidavit vide Exh.31. She has also been cross-examined by the L.As. for the opponents nos.2 and 4, but nothing adverse has come out. It is an admitted fact that the present witness Hamidaben is not eye witness of the alleged accident and, therefore, her evidence is not material to decide the negligence. Not only that, but in support of their case, neither the opponent No.2, nor the opponent No.4 led any counter evidence to challenge the oral as well as documentary evidence of the applicants; but they have placed reliance on the relevant citations of the Hon'ble the Apex Court. Not only that, but in support of their case, neither the opponent No.2, nor the opponent No.4 led any counter evidence to challenge the oral as well as documentary evidence of the applicants; but they have placed reliance on the relevant citations of the Hon'ble the Apex Court. It is an admitted fact on record that the driver of the opponent No.1 preferred not to step into the witness box in that event the adverse inference can be drawn against him and, therefore, the Tribunal has no way except to accept the say of the claimants stated in the oral evidence as well as by producing the evidence on record. The FIR produced vide Exh.35 goes to show that due to sheer negligence on the part of the opponent No.1's driver, the said accident took place. Moreover, the opponent No.1's driver has been charge-sheeted, which goes to show that the accident took place due to negligence driving on his part. But here the Panchnama of scene of incident produced vide Exh.37 goes to show that where the accident took place is a 24 feet wide road and on the place of incident, both the vehicles are lying there; but especially the rickshaw was found lying on the wrong side and the motorcycle of the opponent No.4 was lying on the left side of the road, which goes to show that the rickshaw driver came from wrong side and dashed the rickshaw with heavy explosion to the motorcycle, on which the deceased was travelling and thereby the serious accident took place; which prima facie shows that due to his own negligence, the said accident took place. Not only that, but one Madhubhai Bhikhabhai who was travelling on the alleged goods rickshaw with the goods, has narrated the factum of the accident before the police authority, in which he has boldly stated that due to sheer negligence on the part of the rickshaw driver, the said accident took place and, therefore, the say of him, is also required to be believable. Moreover, the L.A. for the opponent No.2 has placed reliance on 2007 ACJ 1284 and has submitted that due to non-joinder of the necessary party, the claim cannot be tenable at law. Moreover, the L.A. for the opponent No.2 has placed reliance on 2007 ACJ 1284 and has submitted that due to non-joinder of the necessary party, the claim cannot be tenable at law. As such here the claimants have not joined the rickshaw driver for proving the negligence aspect and, therefore, the question of negligence could not be decided in absence of the driver, who is primarily liable and, therefore, the negligence should apportion in equal ratio. As against this, the L.A. for the applicants has refuted all the submissions made by the L.A. for the opponent No.2 Insurance Company by submitting that it is prima facie on record that the deceased is the third party of the alleged Goods Rickshaw No.GJ-14-U-4694 of the opponent No.1 and, therefore, looking to the facts of the cited case and the present case on hand, it has disclosed that in that facts of the present case and cited case are quite different from each other and, therefore, the same cannot be made applicable to the present case on hand. Further he has relied upon 2008 ACJ 1964 (Supreme) and 1992 ACJ 1102 (Gujarat), in which it has clearly held in Division Bench that the 'Driver is not the necessary party for deciding the liability of compensation'. Under the circumstances, the question of non-joinder of driver does not arise at this juncture. Hence, considering the rival contentions of both the sides, it is disclosed and proved on record that the deceased was the driver of the motorcycle of the opponent No.3 and he was the third party for the Goods Rickshaw of the opponent No.1 and hence, if the driver is joined or not joined, is not the material question to decide the question of negligence, but here it is first duty of the opponent No.1 and 2 to prove the point of negligence by examine the driver of alleged vehicle and thereby it can be proved that the said accident has not taken place due to their driver and, therefore, according to the settled principle of law, here the opponents nos.1 and 2 failed to examine the rickshaw driver in that event, the adverse inference can be drawn against him, and therefore, the say of the applicants is required to be believable. Further, when the complainant of the said FIR has clearly stated that due to sheer negligence on the part of rickshaw driver, the said accident took place in that event, the complainant's say is also required to be taken into consideration. It is an admitted fact as well as universal rule that the claps never be made with one hand, and the same is also made applicable here in this case also and keeping in mind it, if the negligence of 90% and 10% be apportioned then it would be just, proper and reasonable in the eye of law. As such the Goods Rickshaw driver of the opponent No.1 is more negligent than the opponent No.3's motorcycle driver i.e. the deceased himself for happening of the alleged incident and hence, rickshaw driver is 90% negligent and deceased himself was 10% negligent for happening of the accident. Looking to the P.M. note produced vide Exh.38, in which the Medical Officer has opined that the deceased Rafiqbhai died due to fatal injuries sustained in the alleged accident. Result of which, Issues Nos.1 and 2 are replied in the affirmative and accordingly." Learned advocate Mr.Majmudar submitted that the Tribunal has erred in applying the rule that, 'claps can never be made with one hand'. He submitted that it has come on record from the person who filed the FIR and also from the panchnama that the driver of the auto-rickshaw (Goods) was sheer negligent and it is he who caused the accident, the negligence ought not to have been apportioned. It ought to have been held that it was the rickshaw driver only, who was negligent for the accident. After holding that entire amount should have been awarded from the Insurance Company of the auto-rickshaw. These submissions are not found to be acceptable for the reason that nobody has stated that it was not possible for the motorcyclist to avoid the accident. It is a matter of common knowledge that even in a case of a 'stationary' vehicle with which another vehicle dashes, in absence of proper care being taken by the stationary vehicle displaying necessary 'signs' that the vehicle is stationary, such driver is held contributory negligent, for causing accident. So far as the case on hand is concerned it is a case wherein the rickshaw came from the opposite direction and dashed with the motorcycle. So far as the case on hand is concerned it is a case wherein the rickshaw came from the opposite direction and dashed with the motorcycle. If the motorcyclist was vigilant enough he could have avoided the accident. The fact that he has not shown required alertness, he is rightly held negligent to that extent. Contributory negligence of the motorcyclist is believed by the Tribunal. It is thereafter that the Tribunal has determined the negligence in the ratio of 90:10. The Tribunal has rightly held the motorcyclist negligent to the extent of 10%. The Tribunal was fully conscious to the facts of the case on hand and the role played by the auto-rickshaw driver and the motorcyclist in the accident. This Court is in agreement with the finding recorded by the Tribunal on the question of negligence. Learned advocate Mr. Majmudar relied upon a decision of the Hon'ble the Apex Court in the matter of Ningamma and another v/s. United India Insurance Co. Ltd., reported in AIR 2009 SC 3056 , in support of his submission that, 'the motorcycle was driven by the brother of the owner of the motorcycle, that being so, the deceased brother entered into the shoes of the owner of the vehicle and he being the owner cannot claim any compensation from the present appellant - Insurance Company.' He submitted that the Hon'ble the Apex Court has held that, "If it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of S.163-A. In the instant case, the deceased was not the owner of the vehicle, in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the owner of the motorbike although he was authorised to drive the vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike. He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the owner of the motorbike although he was authorised to drive the vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under S.163-A." Learned advocate for the appellant Insurance Company submitted that the Hon'ble the Apex Court has observed in paragraph 20 of the said judgment that the aforesaid principle is applicable to the cases arising under Section 166 of the Motor Vehicles Act also. There is no dispute about the said proposition. Question is as to whether this Court will entertain the present First Appeal when this particular point was not pressed into service before the Tribunal in the manner it is required to be pressed into. This Court has examined the judgment and award in detail. But, nowhere this point was pressed into service. It appears that the present appellant Insurance Company did not urge before the Tribunal that, 'the driver of the motorcycle, being in the shoes of the owner of the motorcycle, is not entitled to receive any compensation from the present appellant Insurance Company.' That being so, this Court refuses to accept the submissions made by the learned advocate Mr. Majmudar. Besides, the awarded amount being Rs.56,800=00 this Court does not deem it proper to remand the matter to the Tribunal to allow the appellant - Insurance Company to do so. This Court is of the opinion that this matter must rest here. In the result, the First Appeal is dismissed. As the First Appeal is dismissed, no order on Civil Application.