JUDGMENT : VIVEK SINGH THAKUR, J. 1. Present appeal, under Section 173 of Motor Vehicles Act (in short ‘MV Act’), has been preferred by the appellant/State against Award dated 1.7.2014, passed in MAC Petition No. 57-MAC-2/2013, titled Indra Devi and others vs. Secretary (PWD) Government of H.P. and others, whereby the Motor Accident Claims Tribunal, Sirmaur at Nahan (in short ‘MACT’) has allowed the claim petition preferred by the claimants on account of death of late Om Parkash in a motor accident and has awarded compensation of Rs.34,24,400/- along with interest at the rate of 9% per annum from the date of filing of petition till final realization of amount. 2. The appellants and respondent No.7 Ganga Ram were respondents in claim petition, whereas respondents No.1 to 6 herein were claimants. Ganga Ram has been arrayed as respondent No.7 in present appeal. Parties herein-after have been referred as per their status in claim petition i.e. claimants and respondents. 3. Deceased Om Parkash was husband of claimant Indra Devi and father of Ram Kumar, Anup, Rama Kumari and Robina and son of Kanta Devi. 4. I have heard learned counsel for parties and have gone through the record. 5. Grounds for assailing the impugned award argued by learned Additional Advocate General are that there is no evidence on record to support the plea of claimants; negligence on the part of Ganga Ram, Operator of L&T Machine (Shawal); no eye witness has been examined to prove the cause of accident much less negligence on the part of Operator of L&T Machine; claim petition under Motor Vehicles Act was not maintainable but had to be filed under the provisions of Workmen Compensation Act (WC Act); and that 30% addition of future income in the salary of deceased is contrary to settled law. Lastly, it has been contended that L&T machine (shawal) is not the motor vehicle and therefore, claim petition under MV Act was and is not maintainable. 6. Claimants had preferred claim petition under Section 166 of MV Act for awarding Rs.76,80,000/- on account of death of 40 years old late Om Parkash in a motor vehicle accident on 3.3.2013 at about 10.30 AM at place Shila in Tehsil Sangrah, District Sirmaur with assertion that deceased was earning about Rs.19,000/- per month as salary. 7. 6. Claimants had preferred claim petition under Section 166 of MV Act for awarding Rs.76,80,000/- on account of death of 40 years old late Om Parkash in a motor vehicle accident on 3.3.2013 at about 10.30 AM at place Shila in Tehsil Sangrah, District Sirmaur with assertion that deceased was earning about Rs.19,000/- per month as salary. 7. As per record, deceased Om Parkash was serving as Beldar with State HPPW Department and was deputed with L&T machine bearing registration No. HP-18B-9804 in the capacity of labourer and respondent Ganga Ram was driver/operator of said L&T machine. On 3.3.2013, Om Parkash was accompanying the driver/operator of L&T machine in said vehicle for going from village Boghdhar to Lanacheta, Sub Tehsil Nohradhar, District Sirmaur in order to execute the construction/repair work of the road with the help of L&T machine as road known as Khairi-Lancheta had been blocked due to heavy land slide at different points. When it reached near Shila, the L&T machine/vehicle met with accident and Ganga Ram and Om Parkash fell in gorge and Om Parkash died in the said accident. Postmortem of dead body of Om Parkash was conducted on same day in PHC Nohradhar, District Sirmaur as evident from postmortem report Ext.PW1/A. 8. FIR No. 9 of 2013 dated 3.3.2013 Ext.PW2/A was also registered under Sections 279 , 337 and 304-A IPC in Police Station Sangrah, District Sirmaur against Ganga Ram. 9. In reply to petition, apart from objection taken with respect to maintainability of claim petition on the ground that it should have been filed under Employees Compensation Act, on merits, it was denied that accident occurred on account of rash or negligent driving but the occurrence of accident of L&T machine, being driven and operated by Ganga Ram, who was accompanying with deceased Om Parkash, has been admitted with clarification that accident occurred due to sudden lock of hydraulic system of L&T machine. Death of Om Parkash is also not disputed. 10. Death of Om Parkash is also not disputed. 10. It was also admitted in reply that for removing the blockade of road known as Khairi-Lancheta caused due to land slide on account of heavy rain, L&T machine bearing No. HP-18B-9804 was deployed which was being operated and driven by Ganga Ram and Om Parkash, working as Beldar, was deputed to assist the L&T machine’s operator and to lookafter the said machine and in the accident, Om Parkash had died and Ganga Ram was also badly injured. 11. With respect to earning of deceased Om Parkash, it was stated in reply that he was being paid gross salary of Rs.18,797/- and after deduction, he was getting Rs.17,458/- as net salary per month. 12. Respondent Ganga Ram had adopted the reply filed on behalf of State/Department. 13. Claimants had examined 4 witnesses, whereas respondent No.1 had examined two witnesses including Ganga Ram as RW1. PW1 Dr. Yashwant Singh Medical Officer had proved the postmortem report Ext.PW1/A, which was not disputed. PW2 HC Ram Singh proved copy of FIR Ext.PW2/A. Claimant Indra Devi (wife of deceased) filed her examination-in-chief by way of affidavit (Ext.PW3/A) stating therein that deceased Om Parkash was serving in HPPWD Department and was deputed along with L&T machine being driven by Ganga Ram to clear the Lancheta road, and in that process, the vehicle/shawal machine met with accident on account of rash or negligent act on the part of Ganga Ram at a place Shila leading to death of Om Parkash. She also stated that Om Parkash was earning Rs.19,000/- per month and was maintaining her, their four minor children and his mother. In cross-examination, she admitted that she was not eye witness to the accident but the persons from the Department, who had brought dead body of Om Parkash to their village, had told her about cause of accident. 14. PW4 Chander Mohan filed his examination-in-chief by way of affidavit (Ext.PW4/A) who was resident of a place nearby Shila. He stated that on that day, at the time of accident, he was at home and shawal machine (L&T machine’s) being driven by Ganga Ram fell in deep gorge causing the death of Om Parkash on the spot. He stated that accident took place on account of rash or negligent act on the part of Ganga Ram. He stated that on that day, at the time of accident, he was at home and shawal machine (L&T machine’s) being driven by Ganga Ram fell in deep gorge causing the death of Om Parkash on the spot. He stated that accident took place on account of rash or negligent act on the part of Ganga Ram. In cross-examination, he stated that when he reached on the spot, Om Parkash had already died and Ganga Ram was injured and the place of accident was at a distance of 400-500 metres from his residence. He deposed that he was not in a position to tell about the cause of accident but with assertion that JCB was being driven by Ganga Ram. 15. Ganga Ram appeared as RW1 and filed his examination- in-chief on affidavit (Ext.RW1/A) admitting therein that he was operating and driving the L&T machine on 3.3.2013 and he, along with Om Parkash, as deputed by the Department, was going to clear the debris of Lancheta road and on the way, at a place Shila, hydraulic system of shawal machine (L&T machine) failed causing locking of steering and resultantly, L&T machine collided with hill side and fell in deep gorge and he and Om Parkash, both of them, fell in gorge alongwith machine about 150 feet deep and Om Parkash died on the spot and he became unconscious. He stated that he was not driving the machine/vehicle rashly and negligently but accident took place due to mechanical defect. He proved on record his driving licence, registration certificate of L&T machine/vehicle. 16. In cross-examination, RW1 Ganga Ram, at one place, stated that it was incorrect that deceased was not sitting in machine but thereafter, he admitted that he and Om Parkash (deceased) together were going in machine for clearing the debris and at the time of occurrence of accident, he and Om Parkash were sitting in machine/vehicle. He also stated that he alone was doing the work of removing the debris from road and he was not knowing that how Om Parkash fell in khud. 17. RW2 Yash Pal is mechanical/technician of the Department and he proved on record mechanical report Ext.RW2/A. In cross- examination, he stated that steering of vehicle might have locked after the accident with further clarification that there were remote chances of such happening. 18. 17. RW2 Yash Pal is mechanical/technician of the Department and he proved on record mechanical report Ext.RW2/A. In cross- examination, he stated that steering of vehicle might have locked after the accident with further clarification that there were remote chances of such happening. 18. Though in appeal, it has been contended that L&T machine was not a motor vehicle but no such objection has ever been taken either in reply or evidence produced on record on behalf of State as well as Ganga Ram. Otherwise also, this plea of appellant is not sustainable for the discussion herein-after. 19. Definition of motor vehicle has been provided in Section 2(28) of the MV Act, which reads as under:- “(28) “motor vehicle” or “vehicle” means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding (twenty-five cubic centiments).” 20. The Apex Court in pronouncement in Bose Abraham vs. State of Kerala , (2001) 3 SCC 157 , has held that excavators and road-rollers are motor vehicles for the purpose of Motor Vehicles Act and they are registered under that Act. 21. A Division Bench of this High Court in pronouncement in CWP No. 9552 of 2013 titled M/s Italian-Thai Development Public Company Ltd. vs. State of H.P. and others decided on 6.12.2016, reported in 2016 SCC OnLine HP 2768, after taking into consideration various judgments of the Supreme Court, has concluded that construction equipment vehicles, more particularly, water tankers, heavy hyvas, farm tractors, transit mixtures and other heavy machines definitely fall within the definition of Motor Vehicles. 22. Relying upon pronouncements of the Supreme Court as well as various High Courts and provisions of law in pronouncement dated 8.1.2016 in FAO (MV) No. 247 of 2009 titled National Insurance Company Ltd. vs. Sharda Devi , it was held that JCB is a motor vehicle. 23. 22. Relying upon pronouncements of the Supreme Court as well as various High Courts and provisions of law in pronouncement dated 8.1.2016 in FAO (MV) No. 247 of 2009 titled National Insurance Company Ltd. vs. Sharda Devi , it was held that JCB is a motor vehicle. 23. In the present case, it is also an admitted fact that L&T machine was registered with Registering and Licensing Authority, Nahan with registration No. HP-18B-9804 as a motor vehicle under Motor Vehicles Act. 24. In view of above, plea of appellant that L&T machine involved in accident was not a motor vehicle is not sustainable and, accordingly, rejected. 25. Objection with respect to maintainability of petition, by referring provisions of Employees Compensation Act is also not sustainable in view of the unambiguous and clear provisions of Section 167 of MV Act which reads as under:- “167. Option regarding claims for compensation in certain cases-Notwithstanding anything contained in the Workmen’s Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen’s Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either or those Acts, but not under both.” 26. From the aforesaid provisions of Section 167 , it is undoubted that claimants have option to prefer the claim petition either under EC Act or under MV Act and claimants, in present case, have not preferred any petition under EC Act but had preferred the petition under MV Act and thus the objection on this count raised by State is also not sustainable. 27. It is true that claimant Indra Devi is not eye witness to the accident. PW4 Chander Mohan, though had reached on the spot, but after occurrence of the accident and he had not witnessed the accident but when he arrived on spot, accident had already occurred and Om Parkash had died and Ganga Ram was lying injured. 28. Only eye witness available on record is RW1 Ganga Ram. In his examination-in-chief, he denied the rash or negligent act on his part. However, he admitted that Om Parkash was accompanying him being deputed by the Department to help him and lookafter the machine for clearing the debris on Lancheta road. 28. Only eye witness available on record is RW1 Ganga Ram. In his examination-in-chief, he denied the rash or negligent act on his part. However, he admitted that Om Parkash was accompanying him being deputed by the Department to help him and lookafter the machine for clearing the debris on Lancheta road. In cross- examination, he stated that deceased Om Parkash was not deputed with JCB as conductor with further statement that there was no work of conductor with machine. At one place, he stated that he was not knowing that how deceased Om Prakash fell in the khud, but on other hand, he also stated that at the time of accident, he and Om Parkash were going together in L&T machine and they were sitting in machine. He did not refute the fact of registration of FIR against him alleging rash or negligent act on his part. His statement with respect to cause of accident is not reliable for his contradictory deposition in examination-in-chief and cross-examination. However, it is an admitted fact that at the time of accident, he was driving the L&T machine and during that course, accident occurred and Om Parkash died. 29. Deposition of RW2 Yashpal also created doubt with respect to mechanical report wherein it was stated that accident occurred on account of mechanical defect but with admission that there was possibility of mechanical defect after the accident. Therefore, there is no convincing evidence on record to hold that accident occurred on account of mechanical defect. 30. From the evidence on record, it is apparent that employment of Om Parkash with Department, receipt of salary of Rs.18797, assignment of duty to Om Parkash to help Ganga Ram and to lookafter L&T machine, occurrence of accident, death of Om Parkash in accident, registration of FIR against Ganga Ram, registration of L&T machine No. HP-18B-9804 have not been disputed. Dependency of claimants upon deceased Om Parkash as well as his relation with claimants has also not been disputed. 31. The present case has to be decided on the basis of preponderance of probability. Dependency of claimants upon deceased Om Parkash as well as his relation with claimants has also not been disputed. 31. The present case has to be decided on the basis of preponderance of probability. There is no possibility for any other hypothesis on the basis of evidence on record that accident occurred on account of negligence and to rebut this possibility, there is no reliable, cogent and convincing evidence on record as RW1 Ganga Ram, who is only eye witness and who was also involved in accident, has created doubt with respect to veracity of his statement on account of contradictory statement. Therefore, the present case has to be decided by applying the doctrine of res ipsa loquitur. 32. In this regard, following para of pronouncement of the Apex Court in Srikrishna Kanta Singh vs. Oriental Insurance Company , 2025 SCC OnLine 636 is relevant:- “11. In a motor accident claim, there is no adversarial litigation and it is the preponderance of probabilities which reign supreme in adjudication of the tortious liability flowing from it, as has been held in Sunita v. Rajasthan State Road Transport Corporation. Dulcina Fernandes v. Joaquim Xavier Cruz is a case in which the rider, who also carried a pillion, died in an accident involving a pick-up van. There was a contention taken that the claimants who were the legal heirs of the deceased had not cared to examine the pillion rider and hence the version of the respondent in the written statement that the moving scooter had hit the parked pick-up van, was to be accepted. It was found, as in the present case, that the Police had charge-sheeted the driver of the pick-up van which prima facie showed negligence of the charge-sheeted accused. Similarly in the present case also, the Police after investigation, charge-sheeted the driver of the trailer finding clear negligence on him, which led to the accident. This has not been controverted by the respondents before the Tribunal by any valid evidence nor even a pleading. In fact, the Tribunal, on a mere imaginative surmise, found that since the scooter collided with the tail-end of the trailer, it can be presumed that the driver of the scooter was not cautious, which in any event is not a finding of negligence.” 33. In fact, the Tribunal, on a mere imaginative surmise, found that since the scooter collided with the tail-end of the trailer, it can be presumed that the driver of the scooter was not cautious, which in any event is not a finding of negligence.” 33. By referring pronouncements of the Apex Court in Shyam Sunder and others vs. State of Rajasthan , (1974) 1 SCC 690 ; Pushpabai Purshottam Udeshi and others vs. M/s Ranjit Ginning & Pressing Co. (P) Ltd. and another, (1977) 2 SCC 745 and Basthi Kasim Saheb (Dead) by LRs. vs. Mysore State Road Transport Corporation and others, (1991) 1 SCC 298 , learned Single Judge of this High Court in Oriental Insurance Co. Ltd. vs. Nanak Chand and others , 2008 SCC OnLine HP 38 : 2009 ACJ 2240 , has observed that it is open for the defendant/respondent to show affirmatively that he took all reasonable precautions to avoid injury and the injury was not associated with negligence on his part. 34. Relying upon the judgment of the Apex Court in Ravi Kapur vs. State of Rajasthan , (2012) 9 SCC 284 , it has been observed by this Court that where possibility of any other reason causing the accident is ruled out by evidence on record, the defendant/driver of vehicle owed a duty to drive the vehicle carefully and diligently and explanation offered by defendant is not reliable then applying the principle of res ipsa loquitur it can be construed that accident took place on account of rash or negligent act of driver. 35. There is no cogent, reliable and convincing evidence to rebut the presumption of rashness and negligence on the part of Ganga Ram. For the material on record, I am of considered opinion that there is sufficient material on record to hold that accident took place on account of rash or negligent act of Ganga Ram. 36. In National Insurance Company Ltd. vs. Pranay Sethi and others , (2017) 16 SCC 680 and Magma General Insurance Company Limited vs. Nanu Ram alias Chuhru Ram and others , (2018) 18 SCC 130 ; it has been held by the Apex Court that where deceased had permanent job and age of deceased was between 40 to 50 years, there should be addition of 30% of actual salary to the income of deceased towards future prospects. In present case, admittedly deceased was of 40 years and he had permanent job. Therefore, the MACT has not committed any mistake by adding 30% enhancement in the salary of deceased as future prospects. 37. In terms of Pranay Sethi’s case claimants are entitled for loss of estate at the rate of Rs.15,000/- funeral expenses at the rate of Rs.15,000/- and loss of consortium at the rate of Rs.40,000/- each. 38. The MACT has awarded Rs.50,000/- as consortium, Rs.50,000/- for loss of care, love and guidance for children and Rs.25,000/- as funeral expenses. Whereas, claimants are entitled for loss of estate, loss of consortium and funeral expenses in terms of Pranay Sethi’s case, referred supra, and thus, loss of consortium deserves to be enhanced, whereas funeral expenses are to be reduced. 39. However, with respect to quantum of compensation determined on account of loss of dependency amounting to Rs.34,24,400/-, no interference is required as it has been calculated in consonance with verdict of the Supreme Court in Pranay Sethi’s case. 40. Rule 233(2) of the H.P. Motor Vehicle Rules, 1999 provides that provisions of Order 41. Rules 22 and 33 of the Code of Civil Procedure, 1908, shall, so far as may be, apply to the appeals filed under the Act. 41. Following observations of the Apex Court in Eastern Coalfields Limited and others v. Rabindra Kumar Bharti , (2022) 12 SCC 390 , are also relevant to be referred: “18. We may also observe that reference made to Order 41 Rule 33 of the Code of Civil Procedure may not have been justified. Order 41 Rule 33 no doubt clothes the appellate court with an extra ordinary power, which however is a rare jurisdiction. It is to reach justice in the special facts of a case. It is not an ordinary Rule to be applied across the board in all the appeals. In fact, the principle is inter alia no doubt that even if there is no appeal by any of the parties in the proceedings, an order can be passed in his favour in the appeal carried by the other side. Any order which ought to have been passed can be passed.” 42. In fact, the principle is inter alia no doubt that even if there is no appeal by any of the parties in the proceedings, an order can be passed in his favour in the appeal carried by the other side. Any order which ought to have been passed can be passed.” 42. This High Court, considering judgments of the High Courts and the Apex Court, has held that MACT or Appellate Court(s) is/are within its/their jurisdiction to enhance the compensation without the prayer being made for the same. 43. In Surekha W/o Rajendra Nakhate and others v. Santosh S/o Namdeo Jadhav and others , (2021) 16 SCC 467 , the Apex Court has held that for not filing cross-appeal by the claimants in an appeal preferred by the owner/Insurer, enhancement of compensation cannot be declined merely on that ground and it has been reiterated that it is well settled that in the matter of insurance claim compensation in reference to the motor accident, the Court should not take hypertechnical approach and ensure that just compensation is awarded to the affected person or the claimants. 44. In view of above, claimants are held entitled for compensation to the tune of Rs.34,24,400/- for loss of dependency, plus Rs.15,000/- for loss of estate, Rs.15000/- for funeral expenses and Rs.40,000/- each i.e. 2,40,000/- for loss of consortium and as such they are entitled for compensation of Rs.36,94,400/- along with interest at the rate of 7.5% per annum from the date of accident till realization/deposit of the same. 45. Accordingly, impugned award passed by the MACT is modified and the claimants shall be entitled for the compensation as determined herein above and shall be apportioned as under:- (a) Wife of deceased 30%. (b) Mother of the deceased 10%. (c) Children of deceased 15% each. 46. The claimants have also filed an application for release of amount in favour of claimants/respondents No.2 to 5 with submission that 50% of the amount falling in shares of claimant/respondent No.1 Indra Devi and claimant/respondent No.6 Kanta Devi has already been released. 47. In view of these facts, amount falling in shares of claimants/respondents is directed to be released in their favour in terms of aforesaid apportionment along with up-to-date interest thereon by remitting the same in their bank accounts. 48. Needless to say that amount already released in favour of claimant/respondent No.1 and claimant/respondent No.6 shall be adjusted accordingly. 47. In view of these facts, amount falling in shares of claimants/respondents is directed to be released in their favour in terms of aforesaid apportionment along with up-to-date interest thereon by remitting the same in their bank accounts. 48. Needless to say that amount already released in favour of claimant/respondent No.1 and claimant/respondent No.6 shall be adjusted accordingly. Detail of account numbers of claimants is already available on record in the shape of photocopies of front pages of their pass books filed with application for release. Appeal stands disposed of in aforesaid terms, so also pending applications, if any.