1. Heard learned advocates for the parties and perused the papers on record.
2. The appellant-Insurance Company herein has challenged the award dated 09.10.1997 passed by the Motor Accident Claims Tribunal (Special), Porbandar in Motor Accident Claims Cases No. 110 & 129 of 1991 so far as the Tribunal awarded Rs. 1,40,000/- & Rs. 1,65,200/- respectively as compensation with interest @ 12% after holding the driver of the truck negligent to the extent of 70%.
3. It is the case of the claimants that on 08.01.1991 while Shri Mohanlal Thakershi along with Shri Jayantilal Bachubhai Dolaria was riding motorcycle, a truck loaded with salt was lying on the road as a result of which the motorcycle dashed with it. Both the driver and pillion rider of the motorcycle died on the spot. The claimants being the legal heirs and representatives of the driver & pillion rider of the motorcycle therefore filed claim petition seeking compensation being Motor Accident Claims Cases No. 129 & 110 respectively. The Tribunal after hearing the parties passed the aforesaid award.
4. Mr. RC Jani, learned advocate appearing for the appellant- Insurance Company submitted that the Tribunal erred in attributing negligence of 70% on the part of the truck driver looking to the position of the road, panchnama and other evidence on record. He submitted that in the panchnama it is mentioned that a reflector and indicator was there and the same was broken because of the accident.
4.1 Mr. Jani further submitted that the Tribunal ought to have considered that the contributory liability which is held in the present case is other way round. He submitted that the accident happened because of the negligence of the motorcyclist and that the driver of the truck had taken sufficient measures to indicate that the truck was stationary on account of a puncture in the tyre. Mr. Jani submitted that even if it is assumed for the sake of argument that the truck was negligent, it cannot be more than 50% considering the panchnama and the position of both the vehicles after the accident.
5. Ms. Mandavia, learned advocate appearing for the claimants strongly supported the award passed by the Tribunal and submitted that the Tribunal has passed the award after considering the evidence in detail and the same does not call for any interference by this court. She submitted that the spare wheels were kept on the road to block the road and the same ought not to have been done by the truck driver as the motorcyclist could not make out the blockage.
6. As a result of hearing and perusal of records, more particularly, the impugned award and the documents on record, it is borne out that the accident occurred as a result of negligence of both the vehicles. The basic principle of who could have avoided the accident is to be looked into. In the present case, the truck was stationary and was on jack. The motorcycle seems to have been coming in great speed which is why the motorcyclist could not see the tyres which were kept for prevention. The panchnama shows the indicator was damaged. The position of the vehicles in the panchnama is after the accident. Considering the same, it can be said that the motorcyclist to a great extent as compared to the truck driver could have averted the accident had he driven the motorcycle in a moderate speed being cautious and extra vigil at night.
6.1 Considering the position of both the vehicles before and after the accident coupled with the fact that the driver had taken reasonable care to avoid accident but not to the fullest extent possible and the speed of the motorcyclist because of which he could not visualize the tyres on the road, it can be presumed that both the drivers had a reasonable chance of averting the accident. The Tribunal seems to have committed an error in holding the truck driver negligent to the extent of 70% for the accident in question.
6.2 In that view of the matter, considering the facts and circumstances of the case and the aspect of learned advocate for the appellant conceding that in any case, the contributory negligence should not be attributed more than 50%, it would be in the interest of justice to apportion contributory negligence of 50%-50% on the truck driver and the motorcyclisr. As far as quantum is concerned, the award is just and proper and no interference is called for.
7. In the premises aforesaid, appeals are partly allowed. The claimants shall be entitled to 50% of the compensation awarded by the Tribunal. The remaining amount shall be refunded to the appellant - Insurance Company along with proportionate interest @12%. However, if the amount has already been withdrawn by the claimants, the same shall not be recovered from the claimants but it shall be open to the appellant to recover the same from the owner of the vehicle. The award of the Tribunal is modified accordingly.
(K.S. JHAVERI, J.) Divya//