JUDGMENT : Sahidullah Munshi, J. This appeal filed by the claimants/appellants (hereafter the appellants) is directed against an award passed on 8th November, 2005 by the Motor Accident Claims Tribunal, 1st Court, Purulia in M.A.C. Case No.128 of 2004 arising out of a claim application filed by them under Section 166 of the Motor Vehicles Act, 1988. The appellants are the wife, sons and daughter of deceased Kalipada Majhi. By filing the said application, they claimed compensation for a sum of Rs.3,76,500/- (Rupees Three Lakh Seventy Six Thousand Five Hundred) only, with 12% interest per annum together with cost of the case. In the said claim application it has been alleged that the deceased, who died as a result of a motor accident on 22nd July, 2003, was aged about 55 years having a monthly income of Rs. 4,000/- (Rupees Four Thousand) only. According to the appellants, such accident occurred at a place on Purulia Bokaro Road, near Chas More. 2. It is the appellants' case that on 22nd July, 2003 when the deceased, his wife and their son, Sukhari Kumhar @ Majhi were proceeding to Purulia by bus bearing no. JH-09A/0242, he met an accident because of the rash and negligent driving of the driver of the said bus. According to the appellants, the deceased, his wife and son wanted to sit inside the bus but at the insistence of the conductor, the deceased and his son were compelled to sit on the roof of the bus. While the bus was running at a high speed, deceased Kalipada sustained head injury with a bamboo fixed at the check post gate near Chas More. According to the appellants, Kalipada (since deceased) sustained severe injuries and was taken to Sadar Hospital, Purulia wherefrom he was shifted to Bokaro Hospital. But even after all possible treatment, he succumbed to his injuries on 27th July, 2003. The bus was insured with Oriental Insurance Company Limited on the date of accident. Kalipada expired because of such accident and on the date of the accident he used to earn Rs.4,000/- (Rupees Four Thousand) only, per month. Based on such averment and the life expectancy of 20 years, the appellants claimed a sum of Rs.3,76,500/- (Rupees Three Lakh Seventy Six Thousand Five Hundred) only, towards compensation. 3. The claim application was contested by the Oriental Insurance Company Limited by filing written statement. Based on such averment and the life expectancy of 20 years, the appellants claimed a sum of Rs.3,76,500/- (Rupees Three Lakh Seventy Six Thousand Five Hundred) only, towards compensation. 3. The claim application was contested by the Oriental Insurance Company Limited by filing written statement. In the written statement the Oriental Insurance Company (hereinafter referred to as 'the Insurance Company') denied that any such accident took place and even if any such accident occurred, the Insurance Company is not liable but the owner of the vehicle is liable to pay compensation. It was further stated that the deceased Kalipada was guilty and responsible for the alleged accident. It has been stated that the Insurance Company is not liable to pay any compensation because if any such accident is proved, the owner of the vehicle has violated the terms and conditions of the policy including the Motor Vehicles Rules and accordingly, the said company prayed for dismissal of the claim application. 4. In order to prove the claim case, the appellant no.1 herself deposed before the Claims Tribunal as PW 1. Two other witnesses, a co-passenger, Prabir Majhi @ Kumhar deposed as PW 2 and Sukhari Kumhar @ Majhi, son of the deceased, deposed as PW 3. 5. PW 1 stated in her examination-in-chief that she, her husband (since deceased) and her son, PW 3 were going to Purulia by a Minibus bearing No.JH-09A/0242, named as Arjun Rath, from village Kumardaga to Purulia. She has stated that when her husband and her son wanted to enter into the bus, conductor of the said bus asked them to go to the roof while she herself went inside the bus. The bus was running with a very high speed and in a rash and negligent manner. According to her, when the bus reached Chas More Commercial Check Post Gate, due to high speed and negligent driving, the bus suddenly dashed the check post gate and as a result, her husband, hitting at the bamboo gate, got head injury. Her husband and two other persons fell down from the roof of the bus and sustained severe head injuries. According to her, her husband was immediately taken to Sadar Hospital, Purulia and after giving first aid he was referred to Bokaro General Hospital but, despite all possible treatment, he succumbed to his injuries on 27th July, 2003. Her husband and two other persons fell down from the roof of the bus and sustained severe head injuries. According to her, her husband was immediately taken to Sadar Hospital, Purulia and after giving first aid he was referred to Bokaro General Hospital but, despite all possible treatment, he succumbed to his injuries on 27th July, 2003. According to her, accident took place due to rash, negligent and careless driving of the vehicle. PW 1 stated that her husband was admitted on 22nd July, 2003 and he succumbed to his injuries on 27th July, 2003. She has stated that Purulia (M) P.S. Case No.73 of 2003 dated 22nd July, 2003 under Section 279, 337, 338 and Section 304A, I.P.C. was started against the driver of the minibus. She stated that she has submitted certified copy of the F.I.R., certified copy of the seizure list, certified copy of the forwarding report, certified copy of the prayer for adding Section 304A, I.P.C., certified copy of the charge-sheet, post mortem report, bill of Bokaro General Hospital and the insurance policy. According to PW 1, her husband was an owner of a tractor and he used to earn Rs.4,000/- (Rupees Four Thousand) only, per month from such tractor. The victim was only 55 years of age at the time of his unfortunate death. A sum of Rs.50,000/- (Rupees Fifty Thousand) only, has been awarded in a case under Section 140 of the Motor Vehicles Act. 6. In her cross-examination, the said witness has stated "not a fact that no driver or conductor of the bus asked my husband to take a seat on the roof ... no bamboo was hanging overhead of the rail gate", "... my son was on the roof of the bus but he did not fall down and my son did not sustain any injury." 7. In support of the claim case the claimant produced one Prabir Majhi to depose in favour of the claimant as PW 2. In his cross-examination PW 2 has stated "the P.O. gate was open at that time." Another witness, Sri Sukhari Kumhar @ Majhi was produced by the claimants to depose as PW 3. This witness is the son of the deceased Kalipada Kumhar @ Majhi. 8. In his cross-examination PW 2 has stated "the P.O. gate was open at that time." Another witness, Sri Sukhari Kumhar @ Majhi was produced by the claimants to depose as PW 3. This witness is the son of the deceased Kalipada Kumhar @ Majhi. 8. On a categorical scanning of the evidence on record the learned Claims Tribunal has disbelieved the claim case that the victim sustained injuries due to the bamboo poles at the check post gate. According to the Claims Tribunal, fault of the driver could not be proved by cogent evidence and, therefore, the appellants are not entitled to compensation and the Insurance Company has no liability to pay compensation to them. The learned Claims Tribunal has also arrived at a finding that the conductor had no fault and the deceased was not a passenger of the alleged offending bus. 9. Mr. Banik, in support of his case, has placed reliance in the case of Prakash Chandra Biswas v. New India Assurance Company Limited & Anr., reported in 2011 ACJ 622 , to show that when an award under Section 140 of the Act has been passed and when such an award is appealable one and no appeal therefrom being preferred by the parties, they have accepted the position that the vehicle was involved in the accident and since the same was insured by the Insurance Company, such facts cannot be reopened in the proceedings under Section 166 of the Act either at the instance of the owner of the vehicle or the Insurance Company. This proposition, however, is seriously lacking in the present case. Ratio of the judgment cited does not support the contention of the claimants. Simply because an award has been passed under Section 140, the claim under Section 166 has to be allowed, is not the ratio of the said judgment. Paragraph 15 of the said judgment says, "the claimant is required to establish that he met with an accident due to rash and negligent driving of the vehicle in question. Simply because an award has been passed under Section 140, the claim under Section 166 has to be allowed, is not the ratio of the said judgment. Paragraph 15 of the said judgment says, "the claimant is required to establish that he met with an accident due to rash and negligent driving of the vehicle in question. Once this fact is established, the burden shifted on the respondent to show that accident did not happen in the way alleged by the claimant." If this part of the cited judgment is taken into consideration, it will be crystal clear that the claimants have to prove rash and negligent driving in a claim application under Section 166 of the Motor Vehicles Act, 1988. Unless such rash and negligent driving is proved, burden does not shift upon the Insurance Company to prove non-occurrence of the accident. In the given fact situation and considering the evidence on record, it does not appear that the appellants have been able to prove rash and negligent driving of the vehicle in question. Therefore, this case has no application in deciding the present claim case. 10. Mr. Banik has placed reliance in the case of North-East Karnataka Road Transport Corporation v. Vijayalaxmi & Ors., reported in (2012) ACC 912. Mr. Banik has pointed out that when there is a contributory negligence on the part of the conductor and the driver of the bus, they are responsible for the occurrence of the accident and, therefore, the said bus should be held responsible for awarding compensation. In the referred case, on consideration of the documentary evidence on record, the Tribunal held that the accident was on account of rash and negligent driving by the driver of the bus and evidence did not indicate that the deceased contributed in any manner to the accident. On such fact Tribunal passed an award. But here is a different case. In the case at hand, the appellants have failed to prove their case that he was a passenger of the said bus or that the accident took place because of the rash and negligent driving of the bus in question where the deceased was a passenger. Therefore, this case has got no application in the fact situation of the present case. 11. Mr. Banik has relied on another decision in the case of Deeraj Singh v. Mst. Therefore, this case has got no application in the fact situation of the present case. 11. Mr. Banik has relied on another decision in the case of Deeraj Singh v. Mst. Hajra & Ors., reported in (2005) ACC 819 and pointed out that even a passenger boards on the roof of the bus is entitled to compensation. It is true that mere travelling on the roof of a bus does not per se constitute contributory negligence on the part of the bus passenger, but the claimant has to prove that the deceased was travelling in the concerned bus and that the bus was involved in the accident. If such facts are not proved, the claimants cannot establish their claim. This decision, therefore, has got no manner of application in the present case. 12. Mr. Banik lastly referred to a decision in the case of Rajasthan State Road Transport Corporation & Anr. v. Jamal Deen & Anr., reported in 2007 ACJ 2732 which also deals with a case where a passenger was travelling on roof top. The cited judgment refers that on the basis of the evidence, the Court came to a conclusion that the conductor permitted the passenger to board the bus on its roof and that the deceased obtained tickets also. Therefore, it was held that the driver of the bus was aware of the fact that the passengers were sitting on the top of the bus but he has not taken due care and caution to save the bus from any mishappening by touching live electric wires which were running over the bus. The fact of the present case is totally different from the cited case and the same has got no manner of application in the present case. 13. Mr. Das appearing for the Insurance Company has relied on the finding arrived at by the Claims Tribunal and has emphasized the evidence adduced by the witnesses in support of the claim. Mr. Das reiterated that the deceased was never a passenger of the bus and that the allegation that the bus was running at a high speed or that it was driven rashly and negligently, is absolutely false. According to Mr. Das, such fact could not be established by cogent evidence and, therefore, the finding of the Claims Tribunal does not call for any interference by this Court. 14. In support of his submission Mr. According to Mr. Das, such fact could not be established by cogent evidence and, therefore, the finding of the Claims Tribunal does not call for any interference by this Court. 14. In support of his submission Mr. Das has placed reliance on a decision in the case of Minu B. Mehta & Anr. v. Balkrishna Ramchandra Nayan & Anr., reported in 1977 ACJ 118. Relying on paragraphs 28 and 29 of the said judgment Mr. Das submitted that it is incumbent on the claimants to prove negligence before the owner or Insurance Company could be held liable for compensation. It is profitable to set out paragraphs 28 and 29 of the said judgment for our purpose and those are set out below :- "28. This plea ignores the basic requirements of the owner's liability and the claimants right to receive compensation. The owner's liability arises out of his failure to discharge a duty cast on him by law. The right to receive compensation can only be against a person who is bound to compensate due to the failure to perform a legal obligation. If a person is not liable legally he is under no duty to compensate any one else. The Claims Tribunal is a tribunal constituted by the State Government for expeditious disposal of the motor claims. The general law applicable is only common law and the law of torts. If under the law a person becomes legally liable then the person suffering the injuries is entitled to be compensated and the Tribunal is authorised to determine the amount of compensation which appears to be just. The plea that the Claims Tribunal is entitled to award compensation which appear to be just when it is satisfied on proof of injury to a third party arising out of the use of a vehicle on a public place without proof of negligence if accepted would lead to strange results. 29. Section 110(1) of the Act empowers the State Government to constitute one or more Motor Accidents Claims Tribunals for such area as may be specified for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death or bodily injury to persons. The power is optional and the State Government may not constitute a Claims Tribunal for certain areas. When a claim includes a claim for compensation (sic. The power is optional and the State Government may not constitute a Claims Tribunal for certain areas. When a claim includes a claim for compensation (sic. the claimant) has an option to make his claim before the civil Court. Regarding claims for compensation therefore in certain cases civil Courts also have jurisdiction. If the contention put forward is accepted so far as the civil Court is concerned it would have to determine the liability of the owner on the basis of common law or torts while the Claims Tribunal can award compensation without reference to common law or torts and without coming to the conclusion that the owner is liable. The concept of owner's liability without any negligence is opposed to the basic principles of law. The mere fact that a party received an injury arising out of the use of a vehicle in public place cannot justify fastening liability on the owner. It may be that a person bent upon committing suicide may jump before a car in motion and thus get himself killed. We cannot perceive by what reasoning the owner of the car could be made liable. The proof of negligence remains the lynch pin to recover compensation. The various enactments have attempted to mitigate a possible injury to the claimant by providing for payment of the claims by insurance." 15. Mr. Das also relies upon a decision in the case of Oriental Insurance Company Limited v. Premlata Shukla & Ors., reported in 2007 (3) TAC 11 (SC). By citing this decision he submitted that proof of rashness and negligence on the part of the driver is sine qua non for maintaining an application under Section 166 of the said Act. 16. In support of such contention he has relied on paragraph 10 of the said decision which is set out below :- "10. The insurer, however, would be liable to re-imburse the insured to the extent of the damages payable by the owner to the claimants subject of course to the limit of its liability as laid down in the Act or the contract of insurance. Proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine qua non for maintaining an application under Section 166 of the Act." 17. The present application filed by the claimants is one under Section 166 of the Motor Vehicles Act, 1988. Proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine qua non for maintaining an application under Section 166 of the Act." 17. The present application filed by the claimants is one under Section 166 of the Motor Vehicles Act, 1988. The basis for a claim under Section 166 is the rash and negligent driving of the driver. Without the element of rash and negligent driving no one can maintain a claim under the said Section except under no fault liability. It is a fault liability claim and, therefore, the claimant has to prove that there has been negligence on the part of the driver concerned. In this context, provisions of Section 166 is required to be set out and it is set out below : "166. Application for compensation. - (1) An application for compensation arising out of an accident or the nature specified in sub-section (1) of Section 165 may be made - (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. (2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits or whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed: Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant. (3) * * * (4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section 158 as an application for compensation under this Act." 18. Section 166 says that an application for compensation arising out of an accident or the nature specified in sub-Section (1) of Section 165 may be made. Therefore, provisions of Section 165 are also required to be taken into consideration. Sub-Section (1) of Section 165 is set out below :- "165. Claims Tribunals. - (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. Explanation. - For the removal of doubts, it is hereby declared that the expression "claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles" includes claims for compensation under section 140 and section 163A. …" 19. Sub-Section (1) says that Tribunals are constituted for adjudication of claims for compensation in respect of accidents involving death of, or bodily injury to persons arising out of use of motor vehicles or damages to any property of a third party so arising, or both. 20. Therefore, on a conjoint reading of Section 166 and sub- Section(1) of Section 165 it necessitates that for maintaining a claim application there has to be some bodily injury due to the use of a motor vehicle. In the instant case, the appellants have claimed that because of the rash and negligent driving of the offending bus (minibus) the victim sustained injury and, ultimately, caused death. 21. Upon scanning the evidence we found that the claimants have failed to prove that the victim was a passenger of the bus. No evidence has been laid to prove that the victim at the relevant time purchased ticket. Exhibit list does not show any such ticket. No evidence was led to show that the victim was asked to board on the roof of the bus by the conductor or the driver. No evidence has been laid to prove that the victim at the relevant time purchased ticket. Exhibit list does not show any such ticket. No evidence was led to show that the victim was asked to board on the roof of the bus by the conductor or the driver. On the contrary, PW 2 has admitted that P.O. gate was open at the relevant time. Therefore, the story made out by the appellants that the victim got injury due to the overhead bamboo at the P.O. gate, remains unsubstantiated. 22. Where claim is made under Section 166 of the Motor Vehicles Act, 1988, onus of proof lies on the claimant. Cogent and reliable evidence in support of contention must be put forward. Claimant cannot proceed as per surmises or general knowledge, particularly, in cases where compensation is to be awarded. 23. In the present case, we have considered the evidence on record in detail and we find no fault on the part of the vehicle in question. The learned Claims Tribunal has also considered the evidence on record and arrived at a finding that there has been no rash and negligent driving on the part of the driver of the bus in question. Therefore, so far as rash and negligent driving is concerned, we find no error in the finding arrived at by the learned Claims Tribunal. On the contrary, even if it is accepted that the deceased boarded the roof of the bus, he did so at his own risk and in violation of the provisions of Section 123(2) of the Motor Vehicles Act, 1988. Section 123(2) of the Motor Vehicles Act, 1988 is set out below for our purpose - "123. Riding on running board, etc. (1) ... (2) No person shall travel on the running board or on the top or on the bonnet of a motor vehicle." 24. On consideration of the materials on record, we do not find any illegality committed by the learned Claims Tribunal in refusing to grant compensation in favour of the claimants and, therefore, we affirm the impugned award. 25. The appeal is, therefore, dismissed. However, there will be no order as to costs. Urgent Photostat certified copy of this judgment, if applied for, be given to the learned advocates for the respective parties upon compliance of all formalities. Appeal dismissed.