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(4) Whether the respondents-claimants are entitled any relief?"

18. During the course of the judgment, the Hon'ble Division Bench at Para Nos.11 and 12 observed as follows:

"11. Section 166 applies to a case where the claimants have to prove negligence on the part of the tort-feasor before compensation can be awarded in a claim petition filed by them. Under proviso to sub- section (2) of Section 166 a claim has to make a statement that no claim for compensation under Section 140 has been made. Therefore, the two sections namely Sections 166 and Section 140 are mutually exclusive inasmuch as when a claim petition under Section 166 is filed, it is incumbent upon the claimants to prove negligence on the part of the tort-feasor.

In other words when a person is solely responsible for the accident and there is no other tort-feasor involved or responsible in causing the accident, then the compensation cannot be defeated, as under sub-section (4) of Section 140 read with sub-sections (1) and (2) relief is provided for the mere use of the vehicle.

17. Therefore, a situation which is covered under sub-section (4) of Section 140 cannot also be covered under Section 163-A, it is for that purpose both the section begin with non obstante clause and by a harmonious reading of two sections it can be held that while invoking sub- section (4) of Section 140 no other tort-feasor is involved in the accident and that the rider/driver of the vehicle is solely responsible for causing the accident and based on the principle of strict liability or no fault liability, compensation is awarded to a limited extent even in a case where the claimant himself is a tort-feasor. This is an exception to the general doctrine of negligence and hence sub-section (4) of Section 140 is an exception to Section 166 of the Act where negligence has to be proved and also Section 163-A of the Act where the negligence on the part of another tort-feasor need not be proved. Therefore, we answer point No.1 by holding that the claim petition under Section 166 of the Act was not maintainable in the instant case inasmuch as the accident occurred on account of the own negligence of the deceased himself."

22. Similarly referring to the decision of Hon'ble Supreme Court in Deepal Girishbhai Soni Vs.United Insurance Co. Ltd, Baroda reported (2004) 5 SCC 385, the Hon'ble Division Bench has held as under:

"20. Subsequent to this decision is the decision of the Hon'ble Supreme Court in the case of Deepak Girishbhai Soni v. United Insurance Company Limited, Baroda, which is a decision rendered by a larger Bench on a reference by a Bench of two Judges doubting the correctness of the earlier decision in Oriental Insurance Company Limited v. Hansrajbhai V. Kodala. In the said decision it has been held that Section 163-A of the Act covers cases where even negligence is on the part of the victim. It is by way of an exception to Section 166 and the concept of social justice has been duly taken care of. The ratio of this decision in our view applies to a case where the injured/claimant or the deceased as well as any other tort- feasor or tort-feasors may have jointly contributed to the accident and in such an event the injured/claimant or the deceased tort-feasor need not plead or prove negligence of the other tort-feasor and can claim compensation from the wrongful person."

23. At para No.21, the Hon'ble Division Bench observed as under:

"21. However, the decision of the Division Bench of this Court in Appaji's case is applicable to a situation where there is no other tort-feasor and that the injured/claimant or the deceased was solely responsible in causing the accident. Though the Hon'ble Supreme Court has opined that Section 163-A of the Act covers case where even negligence is on the part of the victim and is by way of exception to Section 166 of the Act, the said enunciation has to be made applicable to a case where the victim is negligent along with other tort- feasor who has also contributed to the accident. But in a case where the injured claimant or the deceased alone is the cause of the accident and there is no other person involved as in the instant case then in that event, Appaji's case becomes applicable and the injured/claimant or the legal representatives of the deceased would be entitled to compensation under Section 140 of the Act on no fault basis and their claim under Section 163-A of the Act is not maintainable as held in the said decision of the Division Bench of this Court."