1. The owner of the vehicle in question and the insurer have presented this appeal, aggrieved by the judgment and award dated October 31, 1980, passed by the Claims Tribunal, Hassan, in M.V.C. No. 25/79, on its file, awarding compensation of Rs. 50,000 to the claimants.
2. It is the case of the claimants that one Ramalingam was the driver of the lorry bearing registration No. TMV 3299. It was a Leyland Tanker belonging to respondent No. 2 in the petition. It was insured with respondent No. 1 in the petition. He was driving the lorry on October 24, 1978, on the Bangalore-Mangalore Road and at about 10.30 p.m., near Alur, in Hassan District, he lost the control of the lorry while negotiating a curve; and the lorry fell into a ditch and the driver sustained fatal injured and died on the spot. The first and second claimants are the parents of Ramalingam. The third claimant is the widow of the deceased. The 4th, 5th and 6th claimants are the minor children of Ramalingam - the deceased. The claimants claim compensation of Rs. 1,50,000 from the respondents. The owner of the lorry contested the claim stating that the lorry was well maintained and the accident was due to rash and negligent driving of the lorry by the deceased himself and, as such, he contended that he was not liable to pay any compensation to the claimants.
3. The Tribunal raised the following issues as arising for its considerations.
(1) Whether the claimants prove the accident was due to rash negligent driving of the lorry by its driver
(2) If so, what is the quantum of compensation to which the claimants are entitled
(3) Who are liable to pay the compensation
(4) What order
4. Thereafter, however, the Tribunal thought that it was not necessary to raise the first issue as the accident was the result of the rash and negligent driving of the lorry by the deceased himself and it deleted it and substituted it by Issue No. 1 (a). It reads :
1(a) Whether, the petitioners are entitled to claim compensation for the date of driver of the lorry in the accident
5. Obviously, the Tribunal must have thought that the application was maintainable under the Workmen's Compensation Act. In that view the Tribunal awarded compensation of Rs. 50,000 to the claimants Aggrieved by the said judgment and award, the owner of the lorry and the insurer have come up with the above appeal before this court.
6. The learned counsel appearing for the applicants strenuously urged before us that the Tribunal was not justified in deleting Issue No. 1 and in substituting it by Issue No. 1(a). He further submitted that since the accident was due to the rash and negligent driving of the lorry by the deceased himself, no compensation could be awarded under s. 110A of the Motor Vehicle Act.
7. The sole point, therefore, that arise for our consideration in this appeal is : Whether the claim for compensation on the facts of this case could be entertained under s. 110A of the Motor Vehicle Act
8. It is settled law that the person who claims compensation under s. 110A of the Motor Vehicles Act, has to establish that the accident causing injury or death was due to actionable negligence. That is not, however, necessary under the provision of the Workman's Compensation Act. Hence, the death of the driver in the present case, without more, false within the purview of the provisions of the Workman's Compensation Act. It is for that reason that the learned counsel for the appellants submitted that the application under s. 110A of the Motor Vehicle Act could not be entertain on the facts of this case where the accident was the result of rash and negligent driving of the lorry by the deceased himself.
9. Section 110AA of the Motor Vehicles Act reads :
'Notwithstanding anything contained in the Workman's Compensation Act, 1923, where the death of bodily injury to any person gives rise to a claim for compensation under this act and also under the Workman's Compensation Act, 1923, the person entitled to compensation may claim such compensation under either of those Acts but not under both.'
10. It is no doubt true that, at first blush, it appears that the claim could be made in a case like the present one either under the Motor Vehicles Act or under the Workman's Compensation Act, But a careful reading of the section would reveal that an application under s. 110A would be under the Motor Vehicles Act only where the facts give rise to such a claim under the provisions of the Motor Vehicles Act.
11. To make a claim under the provision of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death or a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu v. Mehta v. Balkrishna Ramchandra Nayan  47 Comp Cas 736. Therefore, if the accident, as in the present case, has occurred due to the rash and negligent driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under section 110A of the Motor Vehicles Act by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle, no doubt an application can lie under s. 110A under Motor Vehicle Act. There is no such pleadings in the petition and the respondent as specifically averred that there was no negligence in the maintenance of the lorry.
12. The facts of the case would attract the doctrine of res ipsa loquitur (the things speaks for itself). While negotiating the curve, the lorry which was under the control of its driver, namely, the deceased Ramalingam, left the road and fell into a ditch. Without more, therefore, it is to be presumed that the accident was the result of rash and negligent driving of the lorry by its driver, namely, the deceased Ramalingam. Therefore, it is obvious, that his legal representatives can not claim compensation under s. 110A of the Motor Vehicles Act.
13. If the person injured in the accident in this case was an employee, for example, a cleaner in the lorry of a person employed for the purposes of loading and unloading, then there would be an option for him either to claim his her compensation under s. 110A of the Motor Vehicles Act proving actionable negligence and the part of the driver of the vehicle or to approach and that compensation under the Workman's Compensation Act, without the necessity of proving negligence and the part of the driver. It is such contingencies that s. 110AA of the Motor Vehicles Act is attracted. But, where the accident is entirely due to the rash and negligent driving of the lorry by the deceased himself, his legal representatives cannot claim compensation under s. 110A of the Motor Vehicles Act and therefore, s. 110AA of the Motor Vehicles Act is not attracted.
14. In the circumstances, therefore, it is obvious, that the petition for compensation under s. 110A of the Motor Vehicles Act is misconceived. It should be an application under Workmen's Compensation Act, if at all, before the concerned authority.
15. In the result, therefore, the appeal is allowed. The judgment and award of the Tribunal are set aside and the claimants are directed, if they are so advised, to institute an application under the Workmen's Compensation Act and the period spent in the present proceedings shall be excluded in calculating the period of limitation before the Commissioner under the Workmen's Compensation Act. No costs.
16. For the foregoing reasons, the cross-objections are dismissed.