1. This appeal has been filed against the judgment and award dated 15.12.2004, passed by the Motor Accident Claims Tribunal(Auxi.II), Kheda at Nadiad, in M.A.C.P. No.251/2002, whereby, the tribunal has awarded compensation in a sum of Rs.2,37,310/- to the claimant with interest at the rate of 12% per annum from the date of filing of application till realization.
2. The facts in brief are that on 16.11.2001, one Mahammad Shafi Yusufbhai Gugarman, appellant herein, alongwith his son were going on Motor cycle. When they reached near Valla village one Rickshaw bearing registration No.GJ-7W-7300 came and dashed the said motorcycle. As a result of the said accident, the appellant sustained grievous injuries and therefore, he filed claim petition being M.A.C.P. No.251 of 2002 before the Tribunal for compensation. The Tribunal after hearing learned advocates for the parties and after perusing the record passed the award as stated hereinabove against which the present appeal is filed by the appellant- original claimant.
3. The learned Counsel for the appellant submitted that the Tribunal has committed an error in awarding the compensation to the appellant. The tribunal failed to appreciate the material on record in its true perspective. He further submitted that the Tribunal has wrongly attributed the contributory negligence. Therefore, he has prayed to allow the present appeal.
4. On the other hand, learned Counsel for the respondents have opposed the appeal and have prayed to dismiss the same, as being without merit.
5. I have heard learned counsel appearing for both the parties and perused the material on record. The Tribunal while deciding the claim petition in paragraph 7 and 8 has observed as under:-
Now it is specifically stated by the petitioner as well as complainant Salimbhai the accident took place on account of dashing offending auto-rickshaw with rear portion of the rickshaw of the petitioner. So far as negligence is concerned the petitioner has specifically contended that the accident took place on account of sole rash and negligent driving on the part of the driver of the opponent no.1 and hence it is the duty of the opponent no.1 to bring rebuttal evidence on record though the opponent No.1 did not appear before the Tribunal and not brought real facts on record and hence it can be said that the other side has totally failed in discharging their duties. In such type of situation when the driver who is fully aware with the circumstances of the accident does not appear before the Tribunal to discharge his duty, adverse inference must be drawn against him. However, considering the evidence on the record, it appears that this is a head-on collusion as both the vehicles have collided to each other. Therefore, contributory negligence is required to be assessed.
The learned advocate for the petitioner in his written arguments has submitted that at the most the negligence of the motor cyclist may be assessed at 10%. Considering the evidence on the record, in the opinion of this Tribunal, the negligence of the motor-cyclist is held to the extent of 25% and the negligence of the driver of the opponent No. 1 is held to the extent of 75%.
6. In view of the above, I am in complete agreement with the view taken by the tribunal in awarding compensation to the claimant. Apart from that learned advocate for the appellant is not in a position to show anything from the record to take a different view in the matter. Therefore, the present appeal is devoid of any merits, and the same is, accordingly, dismissed.
(K.S.JHAVERI,J.) pawan Top