1.0 The above appeals are directed against the jdugement and award dated 27th January 2010 passed by learned Motor Accident Claims Tribunal (Main), Kheda at Nadiad in Motor Accident Claim Petition No.547 and 548 of 2007 whereby in Claim Petition No.547/2007 the Tribunal has awarded Rs.67,720/ and in Claim Petition No.548/2007 the Tribunal has awarded a sum of Rs.1,54,615/ along with interest at the rate of 9% per annum. The Tribunal also directed that original opponent no.1 is liable for 50% amount of the compensation and Opponent No.3 & 4 are liable for remaining 50% amount of compensation. It was also held that the Opponent No.4 – the present appellant is liable to pay compensation on confirmation of policy.
2.0 On 11.2.2007 at about 11 O' clock the claimants were going on motor cycle for recovery of the amount for the sale of woods. The said motor cycle was driven by the claimant Dilipbhai Arjanbhai Parmar and Vikrambhai Rangitbhai Parmar was the pillion rider. At that time the truck bearing No.G.J.1.T.6005 came in full speed and dashed with the scooter as a result of thIs the claimants sustained injuries. Therefore Dilipbhai Arjanbhai Parmar filed MACP No.548/2007 and Vikrambhai Rangitbhai filed MACP No.547/2007. After hearing the parties the Tribunal passed the aforesaid awards.
3.0 Learned Advocate for the appellant submitted that even according to the finding of the Tribunal is that the driver of the truck was 100% negligent. In that view of the matter the Tribunal ought not to have apportioned the liability.
4.0 As a result of hearing and perusal of the record certain aspects are not in dispute. The Tribunal has come to a specific conclusion that the insurance company of the motor cycle cannot be held liable in view of the evidence on record as the truck came on the wrong side and collided with motor cycle bearing registration No.GJ7A6927 on which the Vikrambhai was traveling as pillion rider. Thus, according to the Tribunal the truck came on the wrong side and therefore obviously the truck driver is solely negligent and responsible for the accident. In fact the Tribunal itself has observed that the driver of the truck was 100% negligent in causing the accident.
5.0 The claimant being a pillion rider and the other person being rider of the motor cycle were eye witnesses to the accident. During the cross examination of the said witnesses it was proved on record that driver of the truck was was rash and negligent in driving the vehicle at the time of the accident and it came on the wrong side and dashed with the motor cycle. The police has also filed chargesheet against the driver of the truck. It is therefore clear that the claimants have proved on record that the driver of the truck was solely negligent in causing the accident and the driver of the truck has not stepped into the witness box to rebut the evidence. The driver has not discharged his duty or burden to prove the fact that the rider of the motorcycle was equally negligent in causing the accident. Having come to the conclusion that the driver of the truck is solely responsible for the accident, the Tribunal without any cogent reasons has committed an error in concluding that both the drivers have equally contributed to the accident in question.
6.0 In the premises aforesaid, the appeals are allowed. The impugned order holding the appellant liable to the extent of 50% is quashed and set aside. It is held that the appellant is not liable to satisfy the award. If the amount is already withdrawn by the claimants, then the same shall not be recovered from the claimant and it will be open to the Insurance Company to recover the amount from the owner of the vehicle. If the claimants have not withdrawn the amount, the same shall be recovered from the owner of the vehicle. Appeal is allowed to the aforesaid extent with no order as to costs. The amount, if any, lying with the Registry of this Court shall be transmitted to the concerned Tribunal forthwith.
(K.S.JHAVERI, J.) niru*