1. This appeal has been preferred against the judgment and award dated 18.08.2004 passed by the Motor Accident Claims Tribunal [Special], Porbandar in M.A.C.P. No. 15 of 2002, whereby the claim petition was partly allowed and the original claimants were entitled to recover an amount of Rs.3,24,500/ from the opponents, out of which opponents nos. 2 and 4 shall jointly and severally pay 80% and opponent no. 3 shall pay 20% along with proportionate costs and interest @ 9% per annum from the date of application till its realization.
2. The facts in brief are that 05.12.2001, at around 1100 hours, while Bhavesh was proceeding towards Kutiyana from Village Vadsada on his motor cycle bearing no. GJ3P6073, at a particular place, a truck bearing no. GJ3U4022, which was parked in the middle of the road without any indicator or any sign or any parking light, the motor cycle driven by Bhavesh, dashed with the truck, as a result of which, he sustained severed injuries and later on he died. The legal heirs of the deceased, respondents nos. 1 and 2 filed claim petition, which came to be partly allowed, by way of the impugned award. Being aggrieved by the said award, the appellant Insurance Company has preferred this appeal.
3. Heard learned counsel for the respective parties and perused the documents on record. The learned counsel for the appellant has mainly contended that the Tribunal has erred in fixing the liability of the Insurance Company to pay the claim amount of 20% of the awarded amount. It appears from the record that the Tribunal has apportioned the negligence between the driver of the truck and the motor cyclist at 80 : 20. However, while passing the impugned award, the Tribunal held the contributory of the motor cyclist i.e. appellant Insurance Company liable to satisfy the claim to the extent of 20%. It is to be noted that the aforesaid liability has been saddled upon the appellant Insurance Company without brining the owner of the motor cyclist into picture. When the motor cyclist was found to be negligent to the extent of 20%, the Tribunal ought to have held the owner of the motor cyclist liable to satisfy the claim. However, in the present case, instead of holding the owner of the motor cyclist liable, the Tribunal has erred in holding the contributory of the motor cyclist i.e. the appellant Insurance Company liable, which is contrary to the settle principle of law. In view of the same, the impugned award qua holding the appellant Insurance Company liable to the extent of 20% deserves to be quashed and set aside.
4. For the foregoing reasons, the appeal is partly allowed. The impugned award is modified to the extent that the direction regarding imposition of liability payable by the appellant Insurance Company to satisfy the award to the extent of 20% is quashed and set aside. Rest of the award remains unaltered and stands confirmed. The impugned award stands modified to the above extent.
5. The appeal stands disposed of accordingly. No order as to costs.
[K.S. JHAVERI, J.] /phalguni/