Judgment : This appeal, U/S 173 of the Motor Vehicle Act, has been preferred against the judgment and award dated 9-10-2007, passed by Motor Accident Claim Tribunal/Additional District Judge/F.T.C.-I, Haldwani, District Nainital, in MACT Case No. 181 of 2005, Pankaj Singh Vs. Smt. Devki Devi and others, whereby a sum of Rs. 2,16,340/- is awarded as compensation to the claimant along with interest @ 7% per annum from the date of filing the claim petition till the date of actual payment, payable by Oriental Insurance Company. 2. Brief facts giving rise to this appeal are that on 24-6-2005, at about 4-00 p.m. claimant Pankaj Singh was going to his home on foot. When he reached near Panchayatghar Phoolchaur, Haldwani at Rampur road, driver of Tractor No. U.P. 02-D/6796 was driving the Tractor in a rash and negligent manner on the road. Suddenly a cow came in front of the Tractor and its driver lost his control over the Tractor and hit the claimant due to which the claimant sustained grievous injuries. He was carried to Soban Singh Jeena Hospital where he was referred to Ram Manohar Lohiya Hospital. The claimant filed claim petition for a sum of Rs. 13,35,000/- as compensation under the provision of Section 166 of the Motor Vehicle Act. 3. The opposite party No.1, owner of the Tractor U.P. 02-D/6796 admitted the accident, but alleged that suddenly a cow came in front of the tractor and the driver had to apply the brake, due to which Tractor slipped on the road and accident occurred. He further alleged that the driver was insured with Oriental Insurance Company during the period 12-1-2005 to 11-1-2006 and the driver was possessing valid driving license. 4. The opposite party No.2, Oriental Insurance Company contested the claim petition by filing written statement and alleged that the liability of the insurer to pay compensation can be fixed when it is proved that the offending vehicle had valid registration, fitness, road tax, permit and insurance policy and its driver was having valid driving license. The insurance company denied its liability to pay any compensation. 5. The insurance company denied its liability to pay any compensation. 5. The opposite party No.3 driver of the Tractor also reiterated the assertion of the owner made in his written statement and alleged that suddenly a cow came on the road and when he tried to save the cow, Tractor over-turned and the person standing by the side of the road sustained grievous injuries. He also alleged that he was driving the Tractor cautiously and he was possessing valid driving license. 6. The learned Tribunal, on the pleadings of parties, framed following issues in the claim petition- (1) Whether on 24-06-2005 at about 4.00 P.M. when Pankaj Singh was returning to his home on foot, near Rampur Road Panchayatghar, Phoolchaur, Haldwani, driver of Tractor No. U.P. 02-D/6796 came there in a rash and negligent manner and dashed him, due to which the claimant sustained grievous injuries? (2) Whether the claim petition is bad for non-joinder of necessary party? (3) To what amount of compensation, the claimant is entitled to get and from whom? 7. Thereafter parties led evidence in the claim petition. 8. The learned tribunal after hearing the counsel for parties and considering the entire material available on record, awarded a sum of Rs. 2,16,340/- as compensation to the claimant along with interest @ 7% per annum from the date of filing the claim petition till the date of actual payment, payable by Oriental Insurance Company. 9. Feeling aggrieved the Oriental Insurance Company has preferred this appeal. 10. I have heard Mr. V.K. Kohli, Senior Advocate, assisted by Ms. Vandna Singh, Advocate for appellant and Mr. Z.U. Siddiqui, Advocate for claimant/respondent No.1. None has appeared on behalf of respondents 2 and 3, owner and driver, in-spite service. 11. Learned Senior Advocate has submitted that the accident in the instant case has not occurred due to the negligence of the driver of the tractor, as has been held by the tribunal. The claimant opted to file claim petition, under Section 166 Motor Vehicle Act, therefore, the liability and negligence of the driver or the owner has to be proved before owner of motor vehicle or insurance company can be held liable for payment of compensation in a motor accident claim case, and the learned Tribunal has committed error of law in fixing the liability of insurance company. In support of his contention learned counsel has cited before me the case of Oriental Insurance Co. Ltd. Vs. Meena Variyal and others, reported in (2007) 5 Supreme Court Cases 428. 12. On the other hand learned counsel for the claimant/respondent has submitted that the accident had occurred while the vehicle was in use and principle of strict liability can be adopted in claims for compensation made in respect of motor accident. In support of his contention learned counsel has cited before me the following cases- (1) Kaushnuma Begum and others vs New India Assurance Co. Ltd. and others, reported in 2001(1) T.A. 649 (S.C.). (2) Oriental Insurance Co. Ltd. Through its Divisional Manager, Vs. Smt. Banubegum and another, reported in 2006(1) T.A.C. 430 (Uttaran.) (3) Managing Director T.N. State Transport Corporation vs. Sripriya and others, reported in (2009) 1 Supreme Court Cases (cri) 346. 13. I have gone through the above rulings cited by learned counsel for parties. 14. In the case of Oriental Insurance Co. Ltd. Vs. Meena Variyal and others, reported in (2007) 5 Supreme Court Cases 428, cited by learned Senior Advocate on behalf of appellant the Hon’ble Apex Court has observed that in the claim filed U/S 163-A of the M.V. Act, the compensation will be awarded in terms of Schedule without calling upon the victim or his dependants to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle, whereas once the claimants approach the tribunal U/S 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. It is to be mentioned here that the principle of strict liability propounded in Rylands v. Fletcher has not come for consideration in the above cited case before the Hon’ble Apex Court. 15. In the case of Kaushnuma Begum and others vs New India Assurance Co. Ltd. and others, reported in 2001(1) T.A. 649 (S.C.), cited on behalf of counsel for claimant/respondent, the tribunal has dismissed a claim made before it solely on the ground that there was neither rashness nor negligence in driving the vehicle and hence the driver has no liability, and the corollary of which is that the owner has no vicarious liability to pay compensation to the dependents of the victim of a motor accident. The question before the Hon’ble Apex Court was whether a claim can be maintained before Motor Accidents Claims Tribunal on the basis of strict liability propounded in Rylands v. Fletcher (1861-1873 All England Reports 1). The Hon’ble Apex Court after a detailed discussion has observed as under- “Like any other common law principle, which is acceptable to our jurisprudence, the Rule in Rylands v. Fletcher can be followed at least until any other new principle which excels the former can be evolved, or until legislation provides differently. Hence, we are disposed to adopt the Rule in claims for compensation made in respect of motor accidents.” 16. The Apex Court in above matter has directed the insurance company to pay the amount of compensation. 17. In another case of Oriental Insurance Co. Ltd. Through its Divisional Manager, Vs. Smt. Banubegum and another, reported in 2006(1) T.A.C. 430 (Uttaran.),cited on behalf of learned counsel for claimant/respondent, the Division Bench of this Court has also dealt with this question whether accident arising out of use of motor vehicle can be entertained by the tribunal. In this cited case the deceased was doing the work of welder with some workshop and when he was doing repair work in the tanker the said tanker exploded and due to explosion deceased died on the spot. The Division Bench of this Court also considered the principle of strict liability and made reference that the principle of strict liability was approved by the Apex Court in Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai and another, reported in 1987 (3) S.C.C. 234 , in which the question of applicability of strict liability in India with regard to the motor accidents was considered and the Hon’ble Apex Court held that – ‘Today, the road and the largest number of injuries and deaths are taking place on the roads on account of the motor vehicles accidents. 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 strict liability defined in Rylands v. Fletcher. From the point of view of the pedestrian the roads of this country have been rendered by the use of the motor vehicles who have caused the accidents are not known are increasing in number. From the point of view of the pedestrian the roads of this country have been rendered by the use of the motor vehicles who have caused the accidents are not known are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist whether negligently or not, he or his legal representatives as the case may be should be entitled to recover damages if the principle of social justice should have any meaning at all. In order to meet to some extent the responsibility of the society to the deaths and injuries caused in road accidents there had been a continuous agitation throughout the world to make the liability for damages arising out of motor vehicle accidents as a liability without fault.’ 18. In the above cited case the Division Bench of this Court has also made reference of a catena of decisions of Hon’ble Apex Court and has concluded that since the tanker was insured with insurance company the insurance company was also liable to pay compensation. 19. In the third above cited case of Managing Director T.N. State Transport Corporation vs. Sripriya and others, reported in (2009) 1 Supreme Court Cases (cri) 346, the deceased was the driver of Corporation bus. The vehicle met with an accident, the driver of the bus tried to avoid collision with a lorry, against the bridge. The wall of the bridge broke and the bus capsized and fell into the river and the deceased who was sitting in the front seat got buried in the sand and died. The corporation took the stand that the accident was purely an act of God, there was no negligence which can be attributed to the driver of the bus. The tribunal allowed the claim petition and awarded compensation. The appeal filed by Corporation before Madras High Court was dismissed. The Hon’ble Apex Court maintained the liability of Corporation to pay compensation. 20. The question what is a negligent act, was also considered by Hon’ble Supreme Court in the case of Municipal Corporation of Greater Bombay Vs. The tribunal allowed the claim petition and awarded compensation. The appeal filed by Corporation before Madras High Court was dismissed. The Hon’ble Apex Court maintained the liability of Corporation to pay compensation. 20. The question what is a negligent act, was also considered by Hon’ble Supreme Court in the case of Municipal Corporation of Greater Bombay Vs. Shri Laxman Iyer and another, [2004(1) T.A.C. 3 (S.C.)].It has been held by the Apex Court that – ‘Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations who ordinarily by reason of conduct of human affairs would do or obligated to, or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly correlative. Negligence means either subjectively a careless state of mind, or objectively careless conduct.” 21. Lastly reliance was placed by the claimants on a judgment dated 6-12-2004, passed by Division Bench of this Court in A.O. No. 170 of 2002, United India Insurance Company Vs. Sarafat Khan and another. The fact of case was almost similar to that of case at hand. In that case also wild animals appeared on the road and in process to save the vehicle dashed against a tree. The appeal of insurance company was dismissed, following the judgment of Municipal Corporation of Greater Bombay Vs. Shri Laxman Iyer and another [ 2004(1) T.A.C. (S.C.)]. 22. In the instant case it is admitted case of parties that at the place of accident a cow had come in front of offending tractor and the driver of the tractor tried to save the cow and in this process the tractor overturned and hit the claimant and he sustained grievous injuries. It is not the case of the opposite party that the claimant himself was also negligent in the accident. The driver opposite party No.3 in his written statement has alleged that when the accident took place the claimant was standing by the side of the road. It is not the case of the opposite party that the claimant himself was also negligent in the accident. The driver opposite party No.3 in his written statement has alleged that when the accident took place the claimant was standing by the side of the road. Thus it is proved that the claimant himself did not contribute the negligence and he sustained injuries in the accident arising out of use of motor vehicle. 23. Therefore, he has rightly been held entitled to get compensation. The tribunal also recorded a categorical finding that the tractor in question was having valid insurance coverage and all the documents like fitness certificate, registration, permit, and driving license were also valid. Therefore, the Oriental Insurance Company has rightly been held liable to pay compensation. 24. No other point has been raised by learned Senior Advocate appearing on behalf of the appellant. 25. Therefore, in view of discussion made above, and the law propound in the above cases, I find myself in agreement with the view taken by learned Tribunal holding the insurance company liable to pay compensation. 26. The appeal lacks merit and is liable to be dismissed. 27. The appeal is dismissed.