JUDGMENT : S.R. Brahmbhatt, J. The appellant - original defendant no. 2 in MAC Application No. 294 of 1991 in MAC Tribunal at Vadodara has approached this Court by way of this appeal preferred under Section 173 of the Motor Vehicle Act, 1988, inter-alia, challenging the order and award dated 25.7.1996, whereunder, the Tribunal awarded total sum of Rs.6,72,600/- from the opponents together with interest at the rate of 12% p.a. from the date of application till its realisation and the opponents were held jointly and severally liable to pay the compensation. 2. Facts in brief, as could be culled out from the memo as well as judgment deserve to be set out as under: It is the case of original applicant that on the day of alleged occurrence at the relevant time deceased Ghanshyambhai was returning to Halol from Vadodara on his scooter No. GUM 4358 driving the same with moderate speed and on the correct side of the road. At that time, the opponent no.1 came from opposite side driving his ST Bus No. GJ-1-T-9969 with excessive speed and in a rash and negligent manner and dashed the said bus with scooter of the deceased with the result, deceased received fatal injuries and succumbed to the same. The total compensation of Rs.8,00,000/- was prayed on various grounds and the Tribunal as submitted above, vide judgment and award dated 25.7.1996 awarded Rs.6,72,600/- to the applicants from the opponents together with interest at the rate of 12% p.a. from the date of application till realisation proportionate costs thereon, which is impugned in the present appeal. 3. Learned advocate appearing for the appellant has submitted that essentially the challenge to the award of compensation is on account of Tribunal's holding the opponents to be 100% liable for the accident and not appreciating the facts that the narration and occurrence of the incident would indicate that the scooterist dashed with the bus and therefore, there ought to have been discussion on contributory negligence for accident occurred. 4. Learned advocate for the appellant has invited this court's attention to the portion of the judgment in which the Tribunal has discussed the liability aspect and not accepted the reasoning on behalf of the corporation to indicate that the scooterist was negligent for occurrence of the incident in question. 5. 4. Learned advocate for the appellant has invited this court's attention to the portion of the judgment in which the Tribunal has discussed the liability aspect and not accepted the reasoning on behalf of the corporation to indicate that the scooterist was negligent for occurrence of the incident in question. 5. Learned counsel for the appellant has invited this court's attention with special emphasis on the testimony of the driver of the offending bus and contended that driver's testimony would clearly indicate that the driver was driving the bus at moderate speed and on correct side of the road but road had curve on it and on account thereof, the scooterist slipped and hit his head on road which resulted into death and scooter alone had hit the bus, as this fact has coming out from the testimony of the driver, the Tribunal ought to have appreciate this aspect and therefore the Corporation has confined its challenge to the holding of Corporation and driver alone responsible and therefore, the claim is confined to Rs.2 lacs only. 6. Learned advocate appearing for the appellant has further invited this court's attention to order passed by this Court on 23.12.1996 permitting and joining the State Government as party respondent no.4 on a ground that under Section 129 of the M.V. Act, the wearing of Head Gear was compulsory for the motor cycle rider and in the instant case, there was failure on the part of the State machinery in following the statutory provisions of wearing the hear gear, the State should be called upon to answer the liability or at least to share the liability of the Corporation. Accordingly, the State was joined as a party and therefore, this Court may consider the festooning of some liability on the part of State also on account of their dereliction of duty for ensuring that the scooterist, who ride the vehicle shall have to wear the head gear, which would have avoid some damage and saved his life. 7. This Court has perused the award, records and proceedings and heard learned advocates for the parties. The Tribunal's observation and findings deserve to be reproduced in order to appreciate the approach of the Tribunal, which may not be found out incorrect at all. 7. This Court has perused the award, records and proceedings and heard learned advocates for the parties. The Tribunal's observation and findings deserve to be reproduced in order to appreciate the approach of the Tribunal, which may not be found out incorrect at all. The Tribunal framed the following issues and answered as under: (i) Whether it is proved that during the alleged accident the deceased Ghanshyambhai Natvarlal Shah lost his life because of the rash and negligent driving of ST bus No. GJ-01-T-9969 being driven by opponent no.1 or whether the deceased himself was negligent in driving his own scooter No. GUM 4358? (ii) What amount of compensation, if any, the applicants are entitled to get and from which of the opponents? (iii) What order? (1) In the affirmative so far as opponent no.1 driver of ST bus No. GJ-01-T-9969 is concerned. No negligence whatsoever can ever be attributed to deceased - scooterist. (2) As per Final order. (3) As per final order. "Para - 12 (12) In every such vehicular accident case, therefore, the question arises as to the tortuous liability. Normally, assured-owner is not the person who is directly liable as such vehicles are being driven by the drivers who are paid employees. Therefore, in every such case, Tribunal has first to find out as to whether there was any tortuous liability on account of any actionable negligence on the part of the driver of the offending vehicle and thereby whether the owner -assured of the vehicle is vicariously liable and it is only on finding of this basic fact that the claimants can claim compensation or are entitled to claim compensation. The end product of this discussion is that in every case, the applicant has to establish actionable negligence on the part of the driver of the offending vehicle and thereby tortuous liability on the part of the owner of the vehicle on the principle of vicarious liability. Therefore prima facie burden of proof is always on the claimants to discharge the same by adducing prima facie evidence. It is no doubt true that in very many cases the claimants may not be present at the time of occurrence and are not in a position to adduce evidence as to actual act or actionable negligence on the part of the driver. It is no doubt true that in very many cases the claimants may not be present at the time of occurrence and are not in a position to adduce evidence as to actual act or actionable negligence on the part of the driver. To relieve them of this heavy burden the law has provided to invoke doctrine of 'res ipsa locquitur'. Therefore in such cases once the factum of accident is provided and if the accident is such which speaks for itself and in normal circumstances gives rise to inference of actionable negligence, the burden shifts to the other side viz., the driver to show as to the circumstances under which the occurrence in question occurred and that there was no negligence on his part in the act of his driving the offending vehicle. It is in this context material to resort to the statutory duty cast on the driver of the offending vehicle to inform the nearest police station about the circumstances of the occurrence under S.134 of the MV Act (New). Therefore, in every such case, the driver has to offer his version as to the actual state of affairs which has led to the accident and whether there was any failure on the part of the driver to exercise that reasonable care and caution expected of him while driving the offending vehicle. (13) It is in the background of these legal principles that we have to weigh the evidence led in the case in order to find out as to whether there was sole actionable negligence on the part of ST driver or was there any contributory negligence on the part of the deceased-scooterist himself while driving the scooter at the relevant time or on the part of both of them and ultimately there is vicarious liability on the part of ST-Corporation in the capacity the owner of the ST bus in question. (14) Before adverting to the oral evidence adduced in the case it may be appreciated at this stage that so far as the Issue of negligence is concerned, on behalf of applicants no eye-witness to the actual occurrence is examined and they mainly relied upon the documentary evidence produced in the case which consists of FIR and the Panchnama of the scene of occurrence with a view to prove the alleged negligence on the part of ST Driver, opponent No.1. (16) In this state of affairs, now let us analyse firstly the documentary evidence which consists of FIR and Panchnama of the scene of occurrence. (17) It is pertinent to note that FIR, Ex.27 happened to be lodged by Manharsinh Chhatrasinh, the driver of the ST bus in question who is impleaded as opponent No.1 in the present case. In his complaint he inter alia stated that on the day of alleged occurrence at about. 13-45 he started from Halol Depot alongwith the ST bus No.01-T-9969 and cleaner Dashrathsinh was also with him in the said ST bus. According to him, there were passengers in the said ST bus and when they came near Narmada Canal one scooter No. GUM 4358 was proceeding towards Halal from Vadodara and when it came in front of his ST bus, the scooterist with a view to save him, was hit by his ST bus and died on the spot. He has indeed very categorically stated therein that nor he, and the passengers travelling in the ST bus nor the cleaner thereof received any injuries. (18) The contents of the panchnama, Exh. 28 also reveal the interesting facts wherein inter alia it is stated that the actual spot of occurrence is located on the very southern side of the tar road at a distance of 14' away from the tree on the northern edge of the said road opposite poultry farm near Amaliyara village on Halol Vadodara road where the total width of the road is 22' ft having the kutcha shoulder of 6' on each side. The said road is east-west in direction. It is also mentioned therein that one iron bent mud guard of the scooter is lying on the southern edge of the road at a clear distance of 75' from the place of occurrence. It also very clearly reveals that on the very southern edge of the road facing one ST bus No.GJ-O1-9969 is standing and from behind the rear wheels of the said ST bus at a distance of 38' ft in the east, 'on the very southern edge of the kutcha road the scooter-engine is lying which is completely bent and having the grazing mark thereon. Moreover, in the very southern side of the road, at a distance of 55' one wheel of the scooter after having separated is lying in the gutter. Moreover, in the very southern side of the road, at a distance of 55' one wheel of the scooter after having separated is lying in the gutter. (22) He denied the suggestion that even after the accident his bus was going with excessive speed. He also denied that after the accident his ST bus went upto a distance of 200' ft and thereafter stopped. According to him, it is true that papers of police investigation viz, complaint and Panchnama were furnished to him and it is mentioned in the panchnama that after the accident the bus went upto a distance of 200' ft and then stopped but in this regard at present he cannot explain anything. It is not true that he left his own side and went on the side where the scooterist was proceeding meaning thereby by going on the wrong side he dashed his ST bus with the scooter and caused the accident. He further testified that Halol is in the eastern direction while the Vadodara is in the western direction. According to him, the southern side would be on his left side while coming towards Vadodara from Halol. He indeed denied the suggestion that no such accident occurred on the southern side of the road. He also denied the suggestion that the accident occurred on the northern side of the road at a distance of 3' away from the very centre point of the road. (23) He further denied the suggestion that the scooter was entangled beneath the excel of the front wheel of the ST bus and then was dragged upto a distance of 200' He no doubt admitted that it was dragged upto a distance of 70' ft. He also denied the suggestion that all the spare parts of the scooters were separated because of the accident; but according to him, only the rear wheel of the Scooter was separated. (26) In counter submission, Mr. Patel for the applicants submitted that there is bulky evidence on record to prove and establish that the driver of the ST bus concerned was grossly rash and negligent in driving the said St bus and by coming on the extreme wrong side of the road he dashed the ST bus with the scooter and then dragged the scooter upto a distance of 200' as a result of which deceased received fatal injuries and succumbed to the same. Therefore, ST driver was totally responsible in causing the accident and ultimately the ST Corporation is liable to pay the compensation to the applicants. He further submitted that the FIR which was the documentary evidence first in point of time and happened to be lodged by the concerned driver himself of the ST in question wherein he narrated the correct version of the accident and thereafter Panchnama of the of spot occurrence was also prepared which also unequivocally suggests that the ST driver concerned went on extreme wrong side of the road and dashed the ST bus with the scooter then dragged the same at a distance of 200' and during the process he again put his ST bus on the correct side of the road with a view to save his own skin and tried to establish that he was on the correct side of the road at the time of occurrence. Mr. Patel does not rest here and with all vehemence at his command he further submitted that in this state of things, it is duly proved and established that driver concerned has no regard for truth and he has totally given false versions before this Tribunal about the actual occurrence. Under the circumstances, according to him, no reliance and credence can ever be attached to his sworn testimony and it should be discarded in toto. Therefore, he stressed that it is duly proved and established that the ST driver concerned was fully responsible in causing the accident and no contributory negligence whatsoever can ever be attributed to the deceased scooterist and so resultantly, the ST Corporation is liable to pay compensation to the present applicants." 8. The aforesaid observations and findings of the Tribunal leaves no room for any doubt in respect of negligence which has rightly been attributed to the opponent of offending bus. The Tribunal has also observed that the facts are on record would indicate that the scooter was dragged for 200 ft by bus and if we looks the testimony of the driver, at least he admitted that scooterist was dragged for 75 ft. In view of this, the Court is of the view that the appellant's contention qua holding the scooterist to be party negligent is of no avail as the record speaks for itself which would dissuade this court to hold otherwise. 9. In view of this, the Court is of the view that the appellant's contention qua holding the scooterist to be party negligent is of no avail as the record speaks for itself which would dissuade this court to hold otherwise. 9. This brings the Court to consider the State's responsibility for enforcing strictly the provisions of Section 129 of the M.V. Act or lack thereof, which has resulted into lack of proper enforcement of provisions of Section 129 of M.V. Act on the part of authorities. The Court is conscious that State need not have had any opportunity to put forward its case before the Tribunal as it was not a party. Moreover, there are gnawing question, which has occurred in examining this case as to real nexus between the head gear and way the accident occurred. The factum of fateful day happened to be 'Uttrayan' i.e. kite festival and lack of traffic or thin traffic on the road and lack of direct nexus between the accident and State machinery, without proper opportunity to the State, would persuade this Court not to pass any order against the State in this matter. This may not be construed that State authority be absolved from any such liability in a given case. 10. In the result, there exists no interference in the reasoning given by the Tribunal. The appeal fails and is accordingly dismissed. The claimants will be entitled to receive the balance amount on account of dismissal of the Appeal. Appeal Dismissed.