ADMITTED. 1. Considering the facts and circumstances of the matter, with the consent of Mr. Shelat learned advocate for the appellant so also of Mr. Majmudar learned advocate for the respondent no.3 Insurance Company, the instant appeal is taken up for final hearing.
2. The challenge in this appeal is to the impugned judgment and award dated 29th November 2011 rendered by Motor Accident Claim Tribunal (Aux.), Amreli in M.A.C.P. No.99/2008 whereby the Tribunal awarded Rs.3,31,000/- by way of compensation with running interest at the rate of 9% p.a. from the date of filing of claim petition till realization together with proportionate costs in favour of respondent nos.1/1 and 1/2 herein who were the original claimants. The Tribunal further directed that the said amount shall be paid by appellant and respondent nos.2,3 and 5 herein who were original opponent nos.1, 2, 4 & 5. Original opponent no.5 Insurance Company challenged the said judgment and award rendered by the Tribunal by preferring this appeal.
3. All the respondents except respondent no.2 came to be served. Respondent no.2 is unserved. However, both, Mr. Shelat learned advocate for the appellant and Mr. Majmudar learned advocate for the respondent no.3 Insurance Company submitted that considering the facts and circumstances and the grounds raised in the memo of appeal challenging the impugned judgment and award rendered by the Tribunal, the presence of respondent no.2 is not required for the effective disposal of this appeal.
4. Mr. Shelat learned advocate for the appellant- Oriental Insurance Company (Opponent no.5 before the Tribunal), at the outset, submitted that as per the case of claimants, the accident occurred on account of collision of two vehicles viz. Truck No.GJ- 14T-4238 and Truck No.GJ-1AT-4661. It is submitted that the respondent nos.2 & 3 herein, who were opponent nos.1 & 2 before the Tribunal, are Owner and Insurance Company of Truck No.GJ-14T-4238 and respondent nos.4 & 5 herein, who were opponent nos.3 & 4 before the Tribunal, are Owner of Truck No.GJ-1AT- 4661, which was insured with the original opponent no.5 Insurance Company i.e. the appellant herein. Mr. Shelat learned advocate for the appellant submitted that the Tribunal in the impugned judgment and award discussed and evaluated the oral and documentary evidence on record and while replying issue no.1 regarding the negligence, my attention was drawn to Para-8.7 in the impugned judgment and award and it is submitted that the Tribunal categorically held that due to sole negligence on the part of the driver of the opponent no.1, the said accident took place, in which the deceased Faruksha succumbed to the injuries. It is submitted that the opponent no.1 before the Tribunal happened to be Owner of Truck No.GJ-14T-4238. Mr. Shelat learned advocate submitted that the Tribunal, appreciating overall evidence on record, categorically held that the accident was occurred on account of sole negligence on the part of the driver of Truck No.GJ-14T-4238. He submitted that despite such clear findings, yet in the operative order of the impugned judgment and award, the Tribunal held both the Owners and both the Insurance Companies of both the Trucks jointly and severally liable. It is, therefore, submitted that it is apparently clear that a glaring mistake appears to have been committed by the Tribunal in fastening the liability to pay the compensation upon original opponent nos.4 & 5 viz. appellant herein and respondent no.5. It is, therefore, submitted that the instant appeal may be allowed and the insured and insurer of Truck No.GJ- 1AT-4661 viz. the appellant and respondent no.5 herein may be exonerated from the liability of payment of compensation as awarded by the Tribunal.
5. Per Contra, Mr. Majmudar learned advocate for the respondent no.3 Insurance Company (Original Opponent no.2 and insurer of Truck No.GJ-14T-4238) at the outset, submitted that considering the impugned judgment and award rendered by the Tribunal as a whole, it cannot be said that any mistake appears to have been committed by the Tribunal. It is, therefore, submitted that the appeal deserves dismissal.
6. At the outset, considering the submissions advanced on behalf of both the sides and bare perusal of impugned judgment and award rendered by the Tribunal, there is no dispute that the vehicular accident was result of collision of two trucks. Even considering the pleadings of the original claimants as set forth in their claim petition and more particularly, considering the Para-3.1, it transpires that the claimants attributed the sole negligence to the driver of Truck No.GJ-14T-4238. It appears that they pleaded that the driver of said truck was driving the truck at an excessive speed in rash and negligent manner and he lost control over the vehicle and it dashed to the stationary Truck No.GJ-1AT-4661. Thus, it transpires that even the claimants did not attribute any negligence to the driver of Truck No.GJ- 1AT-4661. Before the Tribunal, oral and documentary evidence came to be adduced and while deciding issue no.1 pertaining to the negligence, the Tribunal in Para-8.7 came to the conclusion that due to sole negligence on the part of driver of opponent no.1 the said accident took place. Under such circumstances, the Tribunal concluded that the accident occurred because of sole negligence on the part of driver of Truck No.GJ-14T-4238 which belonged to opponent no.1. The issue no.1, therefore, replied accordingly. Then the Tribunal proceeded further in the impugned judgment and award regarding the quantum of compensation and came to the conclusion that the claimants were entitled to recover Rs.3,31,000/- by way of compensation. However, in the operative order in the impugned judgment and award, the Tribunal directed opponent nos.1, 2, 4 & 5 viz. the appellant herein as well as respondent nos.2, 3, 4 & 5 to pay above amount of compensation to the claimants. In the above view of the matter, as a matter of fact, since the Tribunal came to the conclusion that the accident occurred because of rash and negligent driving of Truck No.GJ-14T-4238, the Tribunal should have fastened the liability to pay amount of compensation qua original opponent nos.1 & 2 (respondent nos.2 & 3 herein).
7. In above view of the matter, this Court comes to the conclusion that a glaring error appears to have been committed by the Tribunal while fastening the liability to pay compensation amount upon the appellant herein and respondent no.5, as the respondent no.5 (original opponent no.4) happens to be the Owner of Truck No.GJ-1AT-4661 and the appellant happens to be insurer of said truck. To the aforesaid extent, the impugned judgment and award rendered by the Tribunal is required to be interfered with by allowing this appeal.
8. For the foregoing reasons, the appeal is allowed and impugned judgment and award dated 29th November 2011 rendered by Motor Accident Claim Tribunal (Aux.), Amreli in M.A.C.P. No.99/2008 is set aside qua the appellant and the respondent no.5 (original opponent nos.4 & 5). The rest of the impugned judgment and award qua the respondent nos.2 &
3 herein (original opponent nos.1 & 2) shall remain intact and is not interfered with. The appellant Insurance Company shall be at liberty to withdraw Rs.25,000/- deposited with the concerned Tribunal before filing the appeal. No costs.
Since the main appeal stands disposed of, the Civil Application for stay loses its survival value and also, stands disposed of.
abv/g (J.C.UPADHYAYA, J)