1.0 These appeals are directed against the common judgement and awards dated 05.09.2005 passed by learned Motor Accident Claims Tribunal (Auxi), Vadodara in Motor Accident Claim Petitions No.681, 682, 683 and 675 of 2002 whereby the said claim petitions were dismissed with costs of Rs.3000/ and directed the claimants to return the No Fault Liability amount within one month from the date of the said order.
2.0 All the above claim petitions arose out of one common incident.
On 27.02.2002, Bhuriben, Kamleshbhai Ushaben, and Rasilaben were travelling in Jeep No.GJ6/JJ5448 from Tejgadh to village Kadwal. When the said jeep reached near the sim of village Devaliya on Dabhoi Vadodara road, the jeep dashed with one truck. In the accident the aforesaid persons sustained serious injuries and succumbed to the same. Hence the legal heirs filed the aforesaid claim petitions wherein the aforesaid award came to be passed.
3.0 Learned advocate fore the appellants contended that the Tribunal has committed error in dismissing the claim petitions and directing the claimants return the no fault liability amount. The learned advocate for the appellant further submitted that in view of evidence on record and panchnama the jeep was in default and therefore, the claimants are entitled compensation from the insurance company and the owner of the jeep.
4.0 Learned advocate for the respondent supported the judgement and award of the learned Tribunal. She has relied upon para 26 and 27 of the judgement of the Tribunal and submitted that the appeals deserve to the dismissed.
5.0 Heard learned advocates for the parties and perused the documents on record.
6.0 The only issue to be decided in these appeals is with regard to the negligence of the vehicle i.e. either the jeep or the truck. According to the claimants the jeep driver was negligent and therefore they are entitled to compensation. In this regard the complaint is produced at Exh.35 and complainant stated that the truck came form JetpurPavi side; that the driver of the truck had driven his truck rashly and negligently and dashed with the driver's side of the jeep. Para 26 and 27 of the order reads as under:
“26. First information in this case is F.I.R. Filed by husband of the deceased Ushaben at Chotaudepur Police Station. It is stated in this complaint that truck driver was driving his truck in excessive speed and he collided with the jeep. This resulted in the accident. According to this F.I.R. the accident has occurred due to negligence of truck driver. However, same person states in his application for damages Exh.1 and in evidence, that jeep was being driven at excessive speed and jeep collided with the truck. The question arises as to which statement is true. F.I.R. Is given 1 hour and 5 minutes after the accident. While compensation application is filed after 2 months. Evidence is given by the applicant Vikrambhai Chandubhai Rathwa who is husband of the deceased Ushaben 3 years after the accident. Naturally, F.I.R. Was given before the applicant got any chance to take legal advise and decide what should be stated before the court. At the time of filing F.I.R. The applicant had no opportunity to adjust the facts which would give him compensation. The compensation application is drafted by an advocate. Here he would like to twist facts in such a way that the applicants get compensation. The truck driver has absconded and he is not traceable. The applicants or any person has not recorded number of the truck. Hence, it was not possible to trace out the truck driver and force him to give compensation. Only alternative that was left was to find fault of the jeep driver. Hence, at the time of drafting of compensation applications the advocate would have thought that only person who is traceable and who can be sued for compensation is jeep driver. Hence the theory was changed. In F.I.R. It is stated that truck driver was driving with full speed and he collided with the jeep. In application for compensation and in evidence the applicant has been advised to state that the jeep driver was driving his vehicle with full speed and he collided with the truck. Under advise of the advocate, the applicant has stated in his compensation application for damages and evidence that the jeep was being driven in full speed and it collided with the truck. This theory cannot be accepted as F.I.R. shows that that statement is incorrect. The truth appears to be that the truck driver was driving his vehicle at full speed and he collided with the jeep. From the fact that the truck driver was absconded shows that he must have been negligent and his negligence must have caused the accident. Truck driver is not examined as he has absconded and jeep driver cannot be sued, because accident has not taken place due to negligence of jeep driver. Hence, no order can be passed against the jeep driver who is the only opponent in this case.
27.The Investigating Officer who was investigating this case filed “A” summary against the truck driver showing that the truck driver was responsible for this accident and he had absconded. Report is produced at Exh.45 in which it is stated that on 27/02/2002 at about 6.45 pm at outskirts of Devaliya village, driver of the truck had driven his truck rashly and negligently and dashed with jeep No.GJ6/JJ 5448 and due to this Rasilaben, Ushaben, Bhuriben and Kamleshbhai died and thereafter truck driver fled away.”
7.0 Thus, the evidence shows that the negligence is on the part of the driver of the Truck and it was never mentioned that the driver of the jeep was negligent. It is also evident that the jeep was hit from rear side on the right hand side and therefore 100% negligence on the part of the driver of the Truck.
8.0 I am in complete agreement with the reasoning adopted and findings arrived at by the Tribunal in respect of the negligence aspect.
9.0 However, the fact remains that the accident had taken place in which four persons have died. Therefore the claimants are entitled for 'no fault liability'. Under the circumstances the amount paid to the claimants shall not be recovered by the Insurance Company. The direction qua redeposit of the said amount is quashed and set aside. Further, the cost imposed by the learned Tribunal on the appellants is also quashed and set aside. Appeals are partly allowed. No order as to costs.
(K.S. JHAVERI J.) niru*