1.0 This appeal is directed against the judgement and award dated 21.04.2003 passed by the Motor Accident Claims Tribunal (Main.), Valsad in Motor Accident Claim Petition No.361 of 2002 ( Old No. 70 of 1993) wherein the learned Tribunal has partly allowed the aforesaid claim petition by awarding compensation in the sum of Rs. 337000/ along with interest at the rate of 9% from the date of claim petition till realization.
2.0 The aforesaid claim petition has been preferred by the original claimants on account of death of Faizullabhai Badruddin on 06.10.1992 in a vehicular motor accident in which the offending vehicle Tanker No. GJ6T4464 was involved. The learned Tribunal has passed the aforesaid award which is challenged in the present appeal.
3.0 Learned advocate for the appellant submitted that the learned Tribunal has rightly assessed the contributory negligence on the part of the person riding the scooter at 10%, the tanker driver at 50% and the tempo driver at 40%. However, the learned Tribunal in para 14 of the judgement has wrongly held that the entire liability on the appellant Insurance Company all the while overlooking the fact that the appellant Insurance Company had submitted an application for direction to join the owner, insurer of both the scooter and the tempo and the Tribunal had in fact passed an order directing them to be joined and yet the applicants deliberately did not comply with the order.
4.0 He further submitted that the learned Tribunal failed to appreciate and grossly erred that after having given a positive finding that the driver of the tanker was negligent only to the extent of 50% it could not have directed the insurer of the tanker to pay the entire amount of the award especially in view of the fact that the claimants deliberately defied the order of the Tribunal to join the insured and insurer of the other two vehicles involved in the accident.
5.0 Learned advocate for the respondent is not in a position to controvert the contention raised by the learned advocate for the appellant.
6.0 As a result of hearing and perusal of the documents on record, the Tribunal after considering in detail in para 11 of the judgment has clearly held that the driver of the scooter is negligent to the extent upto 10%, driver of the tanker is negligent to the extent up to 50% and driver of the tempo was negligent upto 40%. However, the learned Tribunal in para 14 of the judgement has wrongly held that the entire liability on the appellantInsurance Company overlooking the fact that the appellant Insurance Company had submitted an application for direction to join the owner, insurer of both the scooter and the tempo and the Tribunal had in fact passed an order directing them to be joined and yet the claimants deliberately did not comply with the order. In that view of the matter, the contention raised by the learned advocate for the appellantInsurance company is required to be accepted. When the negligent is clearly held to be that of the other vehicle, the appellant cannot be saddled with those liabilities. Therefore, the Tribunal has committed error in holding that the appellant is liable to satisfy the award.
7.0 Accordingly, it is held that the the appellantinsurance company is is liable to make payment only to the extent of 50% of the total compensation. The Tribunal has awarded total compensation in the sum of Rs. 396000/. Therefore, the appellantInsurance company is liable make payment of Rs. 198000/ along with interest at the rate of 9% from the date of claim petition. The balance amount shall be refunded to the appellant with proportionate costs and interest. The award is modified accordingly. The appeal is allowed to the aforesaid extent with no order as to costs.
(K.S.JHAVERI, J.) niru*