1. The appellant herein has challenged the award dated 01.07.2004 passed by the Motor Accident Claims Tribunal (Aux.) Rajkot at Gondal in Motor Accident Claims Petition No.
232 & 378 of 1990 so far as the Tribunal awarded Rs. 1,17,500/- & Rs. 26500/- respectively by way of compensation to the original claimants along with 9% interest.
2. It is the case of the claimants that while the claimant of Motor Accident Claims Petition No. 232 of 1990 was travelling in truck bearing registration No. GTX 4547, another truck bearing registration no. GTE 8998 wherein the claimant of Motor Accident Claims Petition No. 378 of 1990 was travelling collided with the truck no. GTX 4547. The Tribunal after hearing the parties passed the aforesaid award.
3. Mr. Nanavati, learned advocate appearing for the appellant submitted that the Tribunal came to the conclusion that the driver of truck no. GTX 4547 was negligent to the extent of 20% and driver of truck no. GTE 8998 was negligent to the extent of 80%. Mr. Nanavati submitted that while deciding the question of damages to the truck, the Tribunal ought to have deducted 20%/80% as the case may be considering the negligence aspect.
4. Having heard learned advocate for the appellant and having perused the award, this Court is of the opinion that the submission of learned advocate for the appellant is required to be accepted inasmuch as the Tribunal though has come to the conclusion that the contributory negligence of the driver of truck no. GTE 8998 should be assessed at 80% and the negligence of the driver of truck no. GTX 4547 should be apportioned at 20%. The same is just and proper. However, while considering the damages for the truck, the said apportionment has been lost sight of. In that view of the matter, the Tribunal ought to have assessed damages only to the extent of their negligence.
5.1 The Tribunal has assessed the quantum of compensation of claimant of Motor Accident Claims Petition No. 232 of 1990 at Rs. 117500/-. Considering the negligence of 20%, the claimant of Motor Accident Claims Petition No. 232 of 1990 shall be entitled to compensation of Rs. 94000/- only.
5.2 Similarly, the Tribunal has assessed the quantum of compensation of claimant of Motor Accident Claims Petition No. 378 of 1990 at Rs. 26,500/-. Considering the negligence of 80%, the claimant of Motor Accident Claims Petition No.
378 of 1990 shall be entitled to compensation of Rs. 5300/- only.
6. In the premises aforesaid, appeal is partly allowed. The claimants of Motor Accident Claims Petition No. 232 & 378 of 1990 shall be entitled to compensation to the tune of Rs. 94000/- and Rs. 5300/- respectively. The balance amount shall be refunded to the insurance company with proportionate interests. The award of the Tribunal is modified accordingly. No costs.
(K.S. JHAVERI, J.) Divya//