1.0 The above appeals are directed against the common judgement and award dated 28th April 2003 in Motor Accident Claim Petitions No.1457 of 1996, 1458 of 1996, 1459 of 1996, 1460 of 1996 and 695 of 2001 whereby the Tribunal has partly allowed the claim petitions by awarding different amounts along with interest at the rate of 9% per annum.
2.0 The case of the claimants are as under:
3.0 Claimant Maheshkumar @ Manubhai Kantilal of MACP No.1457/96, deceased Dineshkumar Natwarlal of MACP No. 1458 of 1996, deceased Vinodkumar Vitthaldas of MACP No.1459/96 Sureshkumar Natwarlal of MACP No.1460/96, deceased Jiachandbhai Amrutlal Soni of MACP No. 695/2001 were traveling as passengers in Matador bearing No. GJ7U3855 on 11th July 1995. They were returning from Bhabhar. When the Matador reached near Radhanpur Cross Roads on Mehsana Highway near Mehsana ONGC at about 11.00 pm, it dashed against truck bearing No.RRN 2533 coming from opposite direction. On account of the accident, claimants Maheshkumar @ Manubhai Kantilal Thakkar, Sureshkumar Natwarlal and Lilaben Rameshlal sustained serious injuries whereas the other passengers Dineshkumar Natwarlal, Vinodkumar Vitthaldas and Jiachandbhai Amratlal died on account of the injuries sustained by them. Therefore the injured and legal heirs filed the aforesaid claim petitions which came to be partly allowed which is challenged in the present appeals.
4.0 Heard the learned Advocates for the respective parties and perused the relevant record. As a result of this exercise the only question to be decided in this appeal is with regard to contributory negligence.
5.0 According to the learned Advocate for the appellant, the Tribunal has erred incoming to the conclusion that the driver of the Matador was solely responsible for the accident. He submitted that having regard to the facts and circumstances of the case the Tribunal ought not to have held that the accident was caused solely by negligence on the part of the driver of the Matador. He submitted that there was no clear indication that the Matador insured with the appellant had crossed over on the wrong side of the road and had rammed into the Truck.
6.0 As regards the negligence is concerned the Tribunal has considered the same in para 36 which reads as under:
“36. The claimants have produced the complaint at Exh.71. The complaint is filed by one Rameshkumar Vitthaldas a passenger in the Matador. It is alleged in the complaint that the accident was cause don account of rash and negligent driving by the driver of Matador. The claimants have also produced the panchnama at Exh.73. It shows that the place of accident is on the National Highway going from Mehsana to Ahmedabad opposite ONGC office. The road is about 50” wide and there is a road divider. The place of accident is on the left side of the road on western direction of the road divider and face of the truck is towards northern direction i.e. towards Palanpur on the Ahmedabad Palanpur Road. The left bumper portion, radiator, left head light and mudguard of the truck are crushed. The wind screen of the driver’s cabin is also broken. The panchnama shows that the Matador is at a distance of about five paces from the back and the face of the Matador is towards western direction and the rear portion of it is towards eastern side. It can be gathered from the panchnama that the high way is northsouth and the truck was coming from southern direction and was going towards northern direction. As against this, the Matador is coming from northern direction and was going towards southern direction. But the face of the Matador is towards western direction and the rear portion is towards eastern direction. The panchnama also mentions that the Matador was on the wrong side of the road. The panchnama also shows that front portion of the Matador including radiator is completely broken. Two doors on the left side are also broken and the engine is also damaged.”
7.0 Thus, the Panchnama clearly mentions that the Matador was on the wrong side of the road. In para 40 it is held as under:
“40. It appears from the complaint that a passenger traveling in the Matador has alleged rash and negligent driving by his own driver. The panchnama though does not mention about the exact measurements of the place of accident, but it clearly shows that the Matador had dashed against the truck after going on the wrong side of the road. It also shows that the front portion of Matador is completely broken whereas the left portion of the truck is damaged. If there was a head on collision, the driver portion of the truck would have been damaged, but the panchnama does not show any damage to the right side driver portion of the truck.
Moreover, it appears from the position of the Matador that on account of the impact the face of the Matador which was going from North to South had turned towards western side, and the rear portion of the Matador turned towards eastern side of the road. The panchnama shows that the road is north south and there is a road divider and the place of accident is on the western side of the road divider. Therefore, it is clear that the matador had jumped over the road divider and went on to wrong side of the road and dashed against the left portion of the truck. Learned Advocate Shri Joshi for opponent no.2 has relied upon the judgment reported in 1980 ACJ 237 wherein the law regarding contributory negligence in ahead on collision between two vehicles is laid down. But in the present case the said judgment cannot be made applicable as the evidence clearly shows that the Matador went on to the wrong side and caused the accident. Therefore, in my view, it cannot be said that the truck driver was sole or contributory negligent. It is significant that the opponent no.1, the driver of Matador is not joined as party. Therefore, in my view, analyzing the documentary evidence of complaint and panchnama, in the light of oral depositions of the injured, in my view the accident had occurred on account of rash and negligent driving of Matador No.GJ7U3855. The driver of truck No.RRN 2533 was neither sole nor contributory negligent for the accident. The injury certificates and post mortem notes produced on record shows that the injured sustained injuries and some of the victims died on account of the injuries in the accident involving Matador No.GJ7U3855 and truck No.RRN 2533. It is also proved that the driver of Matador No.GJ7U3855 was sole negligent for the accident. Therefore, issue no.1 requires to be decided in affirmative and issue no.2 requires to be decided in affirmative as driver of Matador No.GJ7U3855 was sole negligent.”
8.0 Thus, there is a definite finding of the Tribunal that the driver of the matador was solely responsible for the accident in question. Learned Advocate for the appellant is not in a position to point out anything to show that the other vehicle was responsible nor the driver of the matador was not at all negligent.
9.0 This Court has also considered the quantum of the award and found that the compensation awarded is just and proper and no interference is warranted.
10.0 I am in complete agreement with the reasoning adopted and findings arrived at by the Tribunal. The appeals are therefore dismissed with no order as to costs.
(K.S.JHAVERI, J.) niru*