1.0 This appeal is directed against the judgment and award dated 29.09.2000 passed by the learned Motor Accident Claims Tribunal (Main), Jamnagar in Motor accident Claim Petition No. 592 of 1993 wherein the Tribunal has awarded a sum of Rs.1,46,800/ along with interest @ 12% from the date of filing the main petition till its realization.
2.0 The claimant was travelling in Matador bearing No. GJ107647 and when the said Matador reached near petrol pump at village Fala, one luxury bus came from the opposite direction. The driver of the Matador took a sudden and sharp turn as a result of which the claimant who seated in the Matador was thrown out and he sustained severe injuries. The claimant therefore, filed the aforesaid claim petition before the Tribunal wherein the aforesaid award came to be passed which is challenged in the present appeal.
3.0 Learned advocate appearing for the appellant contended that Savitaben Chaniyara who is the mother of the claimant stated on oath at Exh. 6 that when the matador reached near petrol pump of village Fala on public road, without any reason the driver of the matador negotiated the turn and because of which the claimant who was sitting in the matador was thrown out from the matador and received fracture in the head.
4.0 Learned advocate for the appellant further submitted that it was stated by the claimant in the statement that he was travelling in the Matador and at that time, some vehicle was coming from opposite direction and the driver of the matador negotiated the turn to avoid the accident. As a result of this he was thrown out from the matador and received injuries on the forehead and head.
5.0 According to the learned Advocate for the appellant, in the cross examination the claimant denied that luxury bus came when he was crossing the road and the bus had dashed with him. Learned advocate for the appellant further submitted that the claimant stated that at the time of accident, he was minor and therefore his mother has given statement. He stated that he has not told about the accident in detail to his mother.
6.0 Learned advocate for the appellant further contended that in the crossexamination the claimant stated that since he had remained unconscious after the accident he was not able to narrate in detail the incident to his mother and that as per his police statement he was knocked down by a luxury bus. The claimant had deposed that he could not remember as to how the accident had occurred and he could not recall as to when the police had recorded his statement. Therefore there are serious discrepancies in his evidence.
7.0 Mr. Mehta, learned advocate for the appellant submitted that in any case on the facts of the case it is clear that the driver of the matador was driving the matador in a rash and negligent manner and in excessive speed as a result of which when the matador reached near petrol pump of village Fala, and when he applied the brake, the claimant was thrown out from the matador and received injuries on the head. Therefore in any case there was negligence on the part of the driver of the luxury bus.
8.0 Learned advocate for the appellant further contended that in view of the state of evidence it is clear that the driver of the Matador was driving the vehicle in an excessive speed and in a rash and negligent manner and since the driver applied the brake suddenly the claimant was thrown out from the matador and received fracture in the head.
9.0 Learned advocate for the appellant therefore, submitted that as there are changes in the version with the regard to the accident, the learned Tribunal ought to have attributed the contributory negligence and the Tribunal has committed error in holding the negligence to the extent of 100%. However, Mr. Mehta submitted that he does not wish to argue the matter on the point of quantum.
10.0 Learned advocate for the opponent No. 6 submitted that since the claimant was travelling in the goods vehicle, the insurance company of the matador is not liable to pay the compensation.
11.0 Learned advocate appearing for the respondentoriginal claimant supported the judgement and award of the learned Tribunal and submitted that learned Tribunal after considering in detail has rightly held that the driver of the bus was solely liable for the accident.
12.0 Heard the learned Advocates for the parties and perused the relevant documents on record. The conclusion of the Tribunal is that the accident has occurred because of the sole rash and negligent driving of the luxury bus.
13.0 There is no dispute that the claimant was thrown out and sustained serious injuries. It is required to be noted that the driver of the luxury bus did not step into the witness box. The claimant in his further examination in chief at Exh.56 did not depose that the driver of the luxury bus was liable for the accident. It was only in his further cross examination on behalf of the driver and owner of the Matador he had stated that since he had remained unconscious after the accident he was not able to narrate in detail the incident to his mother and that as per his police statement he was knocked down by a luxury bus. There are serious discrepancies in his statement.
14.0 Be that as it may, it was the clear case of the claimant in the claim petition that he was traveling in the Matador bearing No.GJ107647 and that when the said Matador reached the petrol pump at village Fala, one luxury bus came from the opposite direction and therefore the driver of the Matador took a sudden and sharp turn as a result of which the claimant who was seated in the Matador was thrown out and he sustained severe injuries. It was also stated by the claimant in the claim petition that the driver of the matador had lodged a false complaint with the police blaming the driver of the luxury bus for the accident. At the time of filing of the claim petition the real owner of the luxury bus and the insurer of the bus were not joined as party opponents. Thereafter the claimant had changed his version. He in his further examination in chief at Exh.56 stated that he was unconscious and as per police statement he was knocked down by a luxury bus.
15.0 Having considered the overall facts and circumstances of the case it is clear that at the relevant time the claimant was traveling in the Matador. When the Matador reached near the petrol pump at village Fala, the luxury bus came from opposite direction as a result of which the driver of the Matador took a sudden and sharp turn as result of which the claimant was thrown out. The Tribunal committed error and possible conclusion can be arrived at from these facts is that the driver of the Matador was also responsible for the accident. Of course the luxury bus being a heavy vehicle it should have been more careful. Therefore I decide the contributory negligence to the extent of 30% to the matador and 70% to the luxury bus.
16.0 This Court has not gone into the quantum aspect of the matter which was not contested by either side.
17.0 In the premises aforesaid, it is held that the amount of award will be jointly paid by the insurer of both the vehicles in the ratio of matador at 30% and luxury bus at 70%. The rest of the award is not disturbed. The award is modified accordingly. Appeal is partly allowed with no order as to costs.
(K.S.JHAVERI, J.) niru*