JUDGMENT : Heard Sri Nagumantri Nageswara Rao, learned counsel for the appellant/respondent No.2/Insurance Company and Sri B.V.Krishna Reddy, learned counsel for the respondent Nos.1 to 4/claimants. 2. This appeal directed by the appellant/respondent No.2/Insurance Company challenging the Order and Decree dated 28.06.2012 passed in M.V.O.P.No.1038 of 2010 by the Motor Accidents Claims Tribunal-cum-II Additional District Judge, Eluru at West Godavari District (hereinafter referred to “Tribunal”). 3. Parties are referred to as they were arrayed in the proceedings before the learned Tribunal, for the sake of convenience. 4. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (for brevity “the Act”) claiming compensation of Rs.6,00,000/- for the death of one Bandlamudi Moshe (hereinafter referred to as “deceased”) in a motor vehicle accident occurred on 10.08.2010 at about 5.30 PM in the fields of one Nageswara Rao, Sirivada village of Bapulapadu Mandal, Krishna District. 5. The case of the claimants is that the deceased was driving a tractor bearing registration No.AP16 T 5973; while ploughing the land, the tractor turned turtle and fell on the deceased; as a result, the deceased died on the spot. 6. The respondent No.2/Insurance Company filed counter contending that the deceased was not having valid and effective driving license to drive the tractor; the deceased is not a third party to the accident and he himself was the insured and therefore, the legal representative(s) of the insured cannot be a claimant as well as the respondent and therefore, the Tribunal has no jurisdiction to entertain the application. 7. It was also contended that as per police record, there was rash and negligence on the part of the deceased, who was driver of the tractor at the time of accident. Therefore, the contention of the respondent No.2/Insurance Company is that the accident occurred due to self-negligence of the deceased and in that view of the matter, the legal representatives of the deceased cannot maintain the application as insured cannot be a claimant as well as respondent. 8. The learned Tribunal, basing on the rival contentions, framed the following issues for trial: 1. Whether the deceased-Bandlamudi Moshe died in a motor vehicle accident on 10.08.2010 due to rash and negligent driving of the Tractor bearing No.AP16 TB 5974 driven and owned by the deceased? 2. What was the age and income of the deceased? 3. Whether the petitioners are entitled to claim compensation? Whether the deceased-Bandlamudi Moshe died in a motor vehicle accident on 10.08.2010 due to rash and negligent driving of the Tractor bearing No.AP16 TB 5974 driven and owned by the deceased? 2. What was the age and income of the deceased? 3. Whether the petitioners are entitled to claim compensation? If so, to what amount and from which of the respondents? 4. To what relief? 9. During enquiry, on behalf of claimants, the 1st claimant i.e., wife of the deceased was examined as P.W.1 and during her evidence, four (04) documents were marked as Ex.A1 to Ex.A4 and one K.Rambabu was examined as P.W.2. On behalf of respondents i.e., respondent No.2/ Insurance Company, its Senior Executive viz., K.Raghu Babu was examined as R.W.1 and the Junior Assistant viz., K.Venkata Rao from RTA Office, Nuzvid was examined as R.W.2. Ex.B2 and Ex.B3; Ex.X1 and Ex.X2 documents were marked for the respondent No.2. Ex.B1, copy of Ration Card was marked for the claimants. 10. The learned counsel for the insurance company, would submit that the learned Tribunal, in the light of evidence referred above, ought to have answered issue No.1, whether the accident was occurred due to the self-negligence of the deceased; But the learned Tribunal did not answer the issue No.1; Simply closed the issue observing that the Inquest Report and Post-Mortem Certificate would establish the death of the deceased. The learned Tribunal without answering the issue No.1, decided issue Nos.2 and 3, assessed the compensation as if the accident was occurred due to rash and negligent act of a third party, and determined the compensation under Section 166 of the Act. 11. Considering the rival contentions, the points that would arise for consideration in this appeal are as under: 1. Whether the Order and Decree passed by the Motor Accident Claims Tribunal-cum-II Additional District Judge, West Godavari at Eluru in M.V.O.P.No.1038 of 2010 dated 28.06.2012 warrants interference of this Court? 2. To what relief? POINT NO.1: 12. It is an admitted fact that the deceased died in a motor vehicle accident occurred on 10.08.2010, when the deceased was ploughing the land with the offending tractor and when the vehicle turned turtle, the body of the tractor fell on him and, he succumbed to injuries, on the spot. 13. Indisputably, the claimants filed application under Section 166 of the Motor Vehicles Act, 1988. 13. Indisputably, the claimants filed application under Section 166 of the Motor Vehicles Act, 1988. An application under Section 166 of the Act is maintainable where death has resulted from the accident by all or any of the legal representatives of the deceased, or and when the accident was occurred as a result of rash or negligent act of the respondent. But, in the case on hand, the contention of the respondent No.2/Insurance Company is that the accident was occurred due to self-negligence of the deceased and therefore, an application under Section 166 of the Act is not maintainable. 14. The learned Tribunal unfortunately did not answer whether the accident was occurred due to negligence of the deceased or any other person. The Hon’ble Apex Court in Ningamma v. United India Insurance Company Limited, (2009) 13 SCC 710 dealt with the similar issue, whether the legal representatives of a person who was driving a vehicle after borrowing it from the owner meets with accident without involving any other vehicle, would be entitled to claim compensation under Section 163-A of M.V.Act? The Hon’ble Supreme Court held that “No borrower steps into the shoes of the owner and the owner cannot himself be a recipient of compensation as liability to pay the same is on him.” 15. Section 304A of the Indian Penal Code (Amendment) Act, 1870 (for brevity “IPC”) deals with homicidal death by rash or negligent act. It does not create a new offence. It is directed against the offences outside the range of Sections 299 and 300 of IPC and covers those cases where death has been caused without “intention” or “knowledge”. The doing of a rash or negligent act, which causes, death is the essence of section 304A. There is a distinction between a rash act and a negligent act. 'Rashness' conveys the idea of recklessness or doing an act without due consideration and 'negligence' connotes want of proper care. A rash act, therefore, implies an act done by a person with recklessness or indifference to its consequences. The doer, being conscious of the mischievous or illegal consequences, does the act knowing that his act may bring some undesirable or illegal results but without hoping or intending them to occur. A rash act, therefore, implies an act done by a person with recklessness or indifference to its consequences. The doer, being conscious of the mischievous or illegal consequences, does the act knowing that his act may bring some undesirable or illegal results but without hoping or intending them to occur. A negligent act, on the other hand, refers to an act done by a person without taking sufficient precautions or reasonable precautions to avoid its probable mischievous or illegal consequences. 16. Now a question arises as to what would constitute a rash or negligent act. At this stage, reference may be taken from the decision of the Hon'ble Supreme Court in the case of Mohammed Aynuddin @ Miyam Vs State of Andhra Pradesh, 2000 (7) SCC 72 wherein it was held as under: The principle of res ipsa loquitor is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrong doer. 17. The claimant shall plead and prove the negligence or rashness act committed by the person, who drove the offending vehicle at the time of accident. In the case on hand, admittedly, the petition was filed under Section 166 of the Act on the ground that the deceased drove the offending vehicle at the time of accident. Therefore, the Tribunal ought to have answered the issue No.1 as to whether the accident was occurred due to rash or negligent act committed by any person/deceased or the accident was occurred due to mechanical defect of the offending vehicle. But, the learned Tribunal failed to answer issue No.1. 18. The learned Tribunal simply observed that the deceased died in a motor vehicle accident and did not further deliberate the manner in which the accident occurred and responsibility for the accident. But, the learned Tribunal failed to answer issue No.1. 18. The learned Tribunal simply observed that the deceased died in a motor vehicle accident and did not further deliberate the manner in which the accident occurred and responsibility for the accident. Therefore, the Order and Decree of the learned Tribunal assessing compensation under Section 166 of the Act without deciding as to whether the accident was occurred due to rash or negligent act of third-party or the deceased or due to mechanical failure of the offending vehicle, is not sustainable in law. Hence, it is liable to be set-aside. Accordingly, point No.1 is answered. POINT NO.2: 19. In the light of finding on point No.1, the appeal in M.A.C.M.A.No.3222 of 2012 is liable to be “Remitted to the Tribunal with a direction for fresh disposal”. 20. IN THE RESULT, the Appeal is “Disposed of” setting-aside the Order and Decree dated 28.06.2012 passed in M.V.O.P.No.1038 of 2010 on the file of Motor Accidents Claims Tribunal-cum-II Additional District Judge, West Godavari at Eluru, remitting the matter to the learned Tribunal to dispose of the case afresh after giving opportunity to both parties to adduce further evidence if any, with regard to issue No.1 framed by the learned Tribunal. 21. The petition pertains to the year 2010. In that view of the matter, the learned Tribunal is directed to dispose of the petition within a period of three (03) months from the date of his notice. There shall be no order as to costs. 22. Needless to say, that any observation made hereinabove is only for the purpose of adjudicating the appeal and the same shall not be construed as an expression on the merits of the matter before the learned Tribunal. As a sequel, miscellaneous applications pending, if any, shall stand closed.