1.0 This appeal is directed against the judgement and award dated 12.03.1999 passed by the Motor Accident Claims Tribunal, Kheda in Motor Accident Claims Petition No. 494 of 1990 whereby the Tribunal has partly allowed the aforesaid claim petition by awarding compensation in the sum of Rs. 1,65,000/ along with interest at the rate of 12% from the date of application till its realization.
2.0 According to claimant, on 03.06.1989 at about 6.00 a.m. he was driving his truck No. GRW 79 and was gong towards Boriavi village at Ravalpura. At that time a truck bearing registration No. GTW 8998 came with full speed behind the back of the claimant and dashed with rear portion of the truck. As a result thereof, the claimants’ truck turned turtle and claimant sustained serious injuries. The claimant therefore, filed the aforesaid claim petition wherein the learned Tribunal passed the aforesaid award which is challenged in the present appeal.
3.0 Learned advocate appearing for the appellant contended that learned Tribunal has committed error in not deducting an amount of Rs.40000/ towards contributory negligence. In support of his submission he placed reliance on the decision of the Hon’ble apex Court in case of T.A. Anthony versus Karvarnanan and others reported in 2008 ACJ 1165.
4.0 Learned advocate for the respondent submitted that the additional premium is paid and therefore the risk is covered. In support of his submission, he placed reliance on the decision of the Division Bench of this Court in case of Maniben S. Pandya versus Shashikant P. Shrigalor reported in 2004 (3) GLR 1878 . Paras 22 and 23 thereof read as under:
“ 22. Mr. Shah, on the other hand, submitted that in the instant case, as per the policy Exh. 282, Additional premium of Rs. 16.00 as per IMT 16 has been paid covering the risk of driver and cleaner subject to IMT 16. Mr. Shah, therefore, submitted that the claim is based on policy and since as per the terms and conditions of the policy, a driver is covered, the Insurance Company is liable and the tribunal ought to have held the company liable.
23. Looking to the provisions of section 95 of the Act and the policy, Exh. 282, it is clear that the policy covers the risk of driver and cleaner and additional payment of Rs.16.00 was paid. In view of payment of additional premium of Rs.16/, the Insurance Co. is liable as per the terms of policy, and the ratio laid down in Minu Mehta's case (supra) cannot be attracted and pressed in service by the Insurance Co. Because of payment of additional premium, the Insurance Company has extended the coverage for the risk of driver and cleaner. In our opinion, therefore, the Insurance Co. cannot be absolved from liability by contending that the claimants were not entitled to compensation since there was 100% negligence on the part of the driver. The claimants are entitled to get compensation from the Insurance Co. for the death of driver on the ground that the case is covered under the terms of policy irrespective of negligence on his part."
Consequently, the conclusion is that the drivers of both the trucks are equally responsible for the accident, therefore, the Insurance Companies should pay the same in equal shares.
4.1 Learned advocate for the respondent submitted that in view of the aforesaid decision, the Insurance Company is bound to pay the compensation.
5.0 Heard learned advocates for the parties and perused the documents on record. In crossexamination of the claimant he admitted in his deposition at Exh. 20 that the truck No. GRW 79 which was driven by him at the time of accident was damaged in the front side and also on the back side. From which it is found that the claimant has also dashed his vehicle to the truck lying on the road already there. Otherwise, the truck driven by the claimant may not be damaged on the front side. Further, the claimant has received injuries on left leg and right leg as the truck was totally pulled down in the left side dig.
5.1 As per the panchnama produced at Exh. 33 it is clarified that the truck No. GRW 79 which was driven by the claimant was completely turned down on the western side and pulled down in the canal. Front portion was also damaged. However, there is no deposition of driver of truck No. GTW 8998.
5.2 By considering in detail, the Tribunal held that the claimant is negligent to the extent of 40%. Therefore, as per the principles laid down in the case of T.A. Anthony ( Supra) wherein it is held that where a person suffers injury, partly due to negligence of another person or persons, and partly by his own negligence, then negligence on the part of the injured is referred to as contributory negligence and claim of injured for damages is not defeated by reason of his own negligence but the damages stand reduced in proportion of his contributory negligence.
6.0 Further, so far as the contention raised by the respondent that additional premium is paid, it will not be appropriate to consider the same, as respondent has not filed cross objection and also the aforesaid contention was not raised before the Tribunal.
7.0 In the premises, I found that there is 40% negligence on the part of the claimant and 60% negligence on the part of the vehicle invoved in the accident and therefore the compensation has to be reduced by 40%.
8.0 Consequently, the Appeal is allowed. The appellantInsurance Company is liable to pay the compensation to the extent of 60% of the compensation i.e. Rs. 99000/ ( 60% of Rs. 1, 65,000/) at the rate of 12% from the date of application. The excess amount of Rs. 66000/ along with proportionate cost and interest which is deposited by the Insurance Company shall be refunded to it. If the claimant has already withdrawn the amount, the Insurance Company will recover the same from the owner of the vehicle. The Judgement and award of the learned Tribunal is modified accordingly. No order as to costs.
(K.S.JHAVERI, J.) niru*