1 By way of filing this appeal under Section 173 of the Motor Vehicles Act, 1988 the appellant has challenged the judgment and order dated 11th February 2004 passed by the learned Motor Accident Claims Tribunal (Aux.), Bhavnagar in MAC Petition No.127 of 1996 whereby the Tribunal has partly allowed the claim petition filed by the claimant.
2 The short facts of the present appeal are that deceased Gordhanbhai Atubhai Hadia was going on motorcycle bearing No.GJ5 H 7718, which was owned by Dhirubhai Jinabhai Pancholi , who was pillion rider, on 31st January 1995 for distributing the wedding cards. It is the case of the claimants they were passing through on Palitana – Talaji road and at about 8 PM their motorcycle given a dash with the stationary tractor trailer which was parked without signal light or parking light. As a result of the said impact, deceased Gordhanbhai Hadia sustained serious injuries and succumbed to the injuries while Dhirubhai sustained serious injuries. The claimants being heirs and legal representatives of Dhirubhai Jinabhai Pancholi filed claim petition claiming compensation of Rs.4,00,000 under different heads.
3 On the point of contributory negligence the Tribunal has discussed evidence in paragraph 11 of the judgment wherein the Tribunal observed that the driver of the Tractor had not taken precautions like switching on parking lights or blinkers while parking the Tractor on the road and due to his negligence the accident had taken place. On the point of income, the Tribunal has considered income of the claimant at Rs.2500 per month out of which deducted 1/3rd towards his personal expenses and arrived at Rs.1670 per month and Rs.20,040 per annum to be the future economic loss. The Tribunal adopted the multiplier of 16 and thereby calculated the dependency benefit at Rs.3,20,640. The Tribunal has also awarded Rs.20,000 under the head of loss of consortium, Rs.10,000 under the head of loss of life and Rs.5,000 under the head of funeral expenses. Thus, in all, Rs.3,55,640 was awarded.
4 Learned counsel for the appellant submitted that the rider of the motorcycle was solely responsible for the occurrence of the accident and that the contributory negligence ought to have been apportioned 50:50 between both the drivers. He has also submitted that the rider of the motorcycle was not holding valid driving licence and because of the same the accident has taken place due to his negligence.
Learned counsel for the respondent has, on the other hand, submitted that the Tribunal has committed an error in not considering the future economic prospects and the amount awarded is on lower side. On the point of negligence, he submitted that there were no parking lights or blinkers on the Tractor and the Driver of the Tractor was solely negligent for the accident.
5 On the point of quantum, I am not disturbing the finding of the Tribunal. However, on the point of contributory negligence, the Tribunal ought to have considered the fact that the accident had taken place as the Scooterist rammed the Tractor from behind and therefore the negligence should have been fastened on the driver of Tractor and rider of the Scooter at 67% : 33% respectively. The Tribunal having fixed the entire liability on the part of the Driver has committed an error and therefore qua that part the impugned judgment and award requires interference. Both the driver of Tractor and rider of the Scooter are responsible for the occurrence of the accident and their negligent is determined at 67% : 33% respectively. Therefore, the claimants are entitled to get Rs.238,279/- as against awarded amount of Rs.355,640/-. Therefore, there is an excess amount of Rs.1.18.371 which is required to be refunded to the appellant with interest and costs. The judgment and award of the the Tribunal is modified to the aforesaid extent. The appeal is allowed partly with no order as to costs.
(K.S.Jhaveri, J.) *mohd