1.0 This appeal is directed against the judgement and award dated 05.05.2004 passed by the Motor Accident Claims Tribunal (Main.), Vadodara in Motor Accident Claim Petition No. 340 of 1995 wherein the learned Tribunal has partly allowed the aforesaid claim petition by awarding compensation in the sum of Rs. 244000/- along with proportionate costs and interest at the rate of 12% per annum from the date of claim petition till 31.12.1999 and the interest @ 9% thereafter up to deposit or realization.
2.0 According to the claimants, Natubhai was traveling in the luxury bus No. GJ 17T 1332 on 18.12.1994. When the said bus reached near the place of occurrence, the truck bearing No. GRW 2504 came from wrong side of the road in a rash and negligent manner and dashed with the luxury bus. As a result of this, the driver of luxury bus could not control the bus and the bus went off the road. In the said accident, Natubhai sustained serious injuries and succumbed to those injuries. The legal heirs of the deceased therefore, filed the aforesaid claim petition wherein the learned Tribunal passed the aforesaid award which is challenged in the present appeal.
3.0 Learned advocate for the appellant contended that the FIR was filed by the owner of the luxury bus against his own driver and yet the owner of the luxury bus was not made party to the claim petition by the claimants.
4.0 Learned advocate for the appellant contended that the learned Tribunal failed to appreciate that the FIR lodged by the owner of the luxury bus against his own driver and the panchnama of the scene of the accident was relied upon not only by the parties but also by the Tribunal and therefore, the learned Tribunal ought to have directed the owner of the luxury bus to be made party opponent and it was an error on its part to allow only the driver of luxury bus to be made a party.
5.0 As a result of hearing and perusal of the documents on record it is found that the learned Tribunal while considering the panchnama held that the drivers of both the vehicles were equally responsible for causing the accident. The claimants have successfully proved that the accident occurred because of composite negligence of drivers of both the vehicles and that negligence can be apportioned at 50:50%. However, the claimants had not joined the owner and the insurance company of luxury no GJ 17 T 1332 as a party-opponents.
5.1. Therefore it is clear that the present appellant is not liable to satisfy the award of 50% which should be that of the Insurance Company of the luxury bus. Therefore, 50% liability cannot be saddled upon the present appellant-Insurance company.
6.0 In the premises aforesaid, the appeal is partly allowed. It is held that the appellant is liable to satisfy the compensation to the extent of only 50%. In case the appellant has deposited the entire amount the balance 50% of the amount shall be refunded to the appellant with proportionate interest and costs. The amount if any lying with this Court shall be transmitted to the concerned Tribunal. Appeal is allowed to the aforesaid extent.
(K.S.JHAVERI, J.) niru* Top