1. By way of this appeal, the appellant has challenged the judgement and award dated 04.07.2006 passed by the Motor Accident Claims Tribunal, Kachchh at Bhuj in Motor Accident Claims Petition No. 277 of 2004 whereby the Tribunal awarded an amount of Rs. 3,93,500/- alongwith interest at the rate of 9% per annum.
2. The original claimant had filed claim petition seeking compensation to the tune of Rs. 4,12,700/- in respect of the vehicular accident which occurred on 05.04.2004 when the one Smt. Valbai Ramji Garva was going on a luna bearing No. GJ-12-AB-9571 from Netra to Sayra. It is the case of the claimants that while the vehicle reached the place of accident, an S.T. Bus bearing registration no. GJ-18-V-7159 came from the opposite direction in a rash and negligent manner and dashed with the luna. Smt. Valbai died on the spot. The claimants therefore filed claim petition under the said circumstance. The Tribunal after hearing the parties passed the aforesaid award.
3. Mr. Nanavati, learned advocate appearing for the appellant insurance company submitted that the Tribunal ought to have appreciated that the deceased at the time of accident was driving motor cycle insured with the appellant insurance company. He submitted that the owner of the vehicle was not joined as party to the proceedings. He submitted that the Tribunal has wrongly held the insurance company liable for the compensation.
4. Learned advocates appearing for the respondents supported the award passed by the Tribunal. Mr. Shah, however, could not controvert the submission regarding the insurance company required to be exonerated. Mr. Shah submitted that the Tribunal has not decided the aspect of negligence between the two vehicles and therefore the matter may be remanded for deciding the aspect of contributory negligence only. Ms. Ashlesha Patel, learned advocate for Ms. Bhatt for the S.T. Corporation submitted that the negligence of either parties is required to be decided else the entire burden of compensation shall shift on the corporation which is against the finding of the Tribunal itself.
5. This Court has heard learned advocates for the parties and perused the papers on record. Considering the evidence on record it is clear that owner was not made a party in the proceedings before the Tribunal and therefore the insurance company of the luna has been wrongly held liable for the amount of compensation. Without holding the owner and driver of the insured vehicle liable, the insurance company cannot be held liable for the tort committed by the driver/owner of the insured vehicle. In such an event this court is of the view that the appellant insurance company is required to be exonerated from the liability of compensation.
6. The issue regarding contributory negligence is also required to be considered. The Tribunal has held the liability of both the vehicles as joint and several. When the insurance company is exonerated, 100% liability cannot be fastened on the S.T. Corporation without deciding the exact negligence of the driver of the luna. Hence the matter is required to be remanded to the Tribunal for decision on the issue of contributory negligence on the part of S.T. Bus driver and luna driver only.
7. Accordingly the following order is passed:
(i) The award impugned in the present appeal is hereby quashed and set aside.
(ii) The appellant-Insurance Company is exonerated from the liability of payment of compensation to the claimants qua the impugned award.
(iii) The amount deposited by the insurance company- appellant shall be refunded.
(iv) The 20% amount which is withdrawn by the claimants shall be deposited by the claimants with interest and costs within a period of eight weeks from today.
(v) If the said 20% amount is not deposited within the prescribed period, it shall be open to the insurance company to file execution proceedings against the claimants
(vi) It is also clarified that the Tribunal shall not proceed with the hearing of the claim petition unless the amount of 20% along with interest and cost is deposited by the claimants.
(vii) Once the amount is deposited by the claimants, the insurance company shall be paid the entire amount by way of Demand Draft.
(viii) The matter is remanded to the Tribunal to consider the issue of contributory negligence in light of the discussion made hereinabove.
(ix) The appellant-Insurance Company is not required to appear before the Tribunal as the issue of contributory negligence is to be decided between the luna driver and the S.T. Bus driver only.
(x) The Tribunal shall hear and decide the matter as early as possible and in any case within a period of two year from the date of receipt of writ of this order.
8. The Appeal is allowed to the aforesaid extent. R & P if lying with this Court shall be sent to the Tribunal forthwith.
(K.S.JHAVERI, J.) Divya//