1. Heard learned advocates for the parties and perused the papers on record.
2. The appellant-Insurance Company herein has challenged the award dated 20.11.2003 passed by the Motor Accident Claims Tribunal (Aux.), Bhavnagar in Motor Accident Claims Petitions No. 773, 684, 774 & 856 of 2001 so far as the Tribunal awarded compensation with interest and costs.
3. It is the case of the claimants that on 19.06.2001 while the applicants of Motor Accident Claims Petition Nos. 773, 774 & 856 of 2001 were returning to Bhavnagar in a Toyota Car bearing registration no. GJ-4-AA-1786 driven by one Shri Sirajbhai, dashed with a truck bearing registration no. GJ-11- U-8419. Sirajbhai passed away in the said accident and the other passengers sustained serious injuries. The legal heirs of Sirajbhai filed Motor Accident Claims Petition No. 684 of 2001 along with injured claimants seeking compensation. The Tribunal after hearing the parties passed the aforesaid award.
4. Mr. Shalin Mehta, learned advocate appearing for the appellant-Insurance Company submitted that the Tribunal erred in attributing total negligence on the part of the truck driver looking to the position of the road, panchnama and other evidence on record. He submitted that considering the evidence of the injured claimants it is clear that the Toyota Car was coming from behind which dashed into the rear of the truck insured with the present appellant.
4.1 Mr. Mehta further submitted that the Tribunal ought to have borne in mind the basic principle as to who could have avoided the accident, which in the present case is the Toyota Car which was behind the truck. He has drawn the attention of this Court to Regulation No. 23 of the Rules of the Road Regulations, 1989 and submitted that the Toyota Qualis Car had failed to maintain a safe distance between his car and the truck and therefore considering all these aspects the Tribunal ought to have attributed atleast 50% of negligence on the part of the Toyota driver.
4.2 Mr. Mehta has fairly not pressed into service the contention regarding quantum of compensation in view of the fact that considering the recent decisions of the Apex Court and settled law, the amount awarded seemed to be just and proper.
5. Mr. Mehta, learned advocate appearing for Mr. Hasmukh Thakkar for the respondent no. 4 supported the award passed by the Tribunal and submitted that the same having been after considering the evidence in detail does not call for any interference by this Court.
6. Mr. Sejpal, learned advocate appearing for the claimants of Motor Accident Claims Petition No. 684 of 2001 has submitted that the issue of contributory negligence raised by the appellant is not applicable as the Car was totally on the left side of the road. He submitted that in fact the quantum awarded to the claimants of Motor Accident Claims Petition No. 684 of 2001 is on lower side. He submitted that the claimants therein are entitled to get higher compensation considering the decision of the Apex Court in the case of Sarla Verma & Ors Vs. Delhi Transport Corp. & Anr. Reported in 2009(6) SCC 121.
7. 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. It is clear that the Qualis was going behind the truck. The truck tried to take a turn on the right side without giving any indications. The road on which the accident took place is a national highway. Therefore if the truck has not given any signal or indication while taking a turn towards right side of the road, the truck driver is negligent.
7.1 At this juncture, Regulation no. 23 of the Rules of the Road Regulations, 1989 is relevant and the same reads as under:
“23. Distance from vehicles in front.- The driver of a motor vehicle moving from behind another vehicle shall keep at a sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop.
7.2 It is true that the Toyota Qualis ought to have maintained a reasonable distance in view of the above regulation which is not done by the Qualis in the present case. Therefore, considering the Qualis a lighter vehicle as compared to the truck which is a greater vehicle and the role of both the vehicles in the accident in question, it cannot be said that the truck driver was completely negligent.
8. In that view of the matter, considering the facts and circumstances of the case and the aspect of truck being greater vehicle, it would be in the interest of justice to apportion contributory negligence of 75%-25% on the truck driver and the Toyota Qualis driver.
9. As far as quantum is concerned, as the contention regarding the same is not pressed into service, this Court has not discussed the same and therefore also it would not be in the interest of justice to enhance the compensation if any as submitted by Mr. Sejpal. The claimants of Motor Accident Claims Petition No. 684 of 2001 have not filed any cross objections. However, a request is made by Mr. Sejpal that this Court may exercise suo motu powers for enhancement of the amount of compensation. This court is of the opinion that the considering the amount of compensation awarded by the Tribunal, the present case is not a case which calls for exercise of suo motu powers by this Court for enhancement of compensation in absence of any cross objections or appeal.
10. In the premises aforesaid, appeals are partly allowed. The claimants shall be entitled to 75% of the compensation awarded by the Tribunal in each case. The remaining 25% of the amount shall be refunded to the appellant-Insurance Company of the truck. It is clarified that the claimants/legal heirs of driver of Qualis shall not be entitled to recover the amount of compensation to the extent of 25% from the Insurance Company of the Toyota Qualis since the driver of the Qualis himself was negligent to the extent of 25%. The award of the Tribunal is modified accordingly.
(K.S. JHAVERI, J.) Divya//