1. By way of this Appeal, the appellant - Insurance Co. has challenged the judgment and award dated 12.5.2005 passed by the Motor Accident Claims Tribunal (Auxi) Ahmedabad in Motor Accident Claims Petition No.683 of 2000 awarding compensation of Rs.1,00,000/- along with interest @ 9% p.a. from the date of petition till realization as well as proportionate costs of the petition.
2. The case of the claimant is that on 28.11.1999, the claimant was travelling in a luxury bus No.RJ-27-P-3479 and at that time one Maruti Van No.GYN 780 came from opposite side and dashed with the luxury bus and therefore, due to dash the luxury bus capsized in ditch. Therefore, the claimant sustained injuries.
3. Learned advocate for the appellant submitted that the Tribunal has wrongly awarded the amount of Rs.1,00,000/- instead of Rs.50,000/-. He also submitted that the driver of the Maruti van was negligent in driving in its vehicle, but the Tribunal held negligent only the driver of the luxury bus. Therefore, contributory negligence is required to be considered for the vehicles involved in the accident. He submitted that even the Tribunal observed in para 6 of the award that both the vehicles were collided each other and therefore, the finding of the Tribunal that only driver of luxury bus is solely liable for the accident as well as for the compensation is required to be modified. He also submitted that award passed by the Tribunal is required to be quashed and set aside by allowing this Appeal.
4. I have perused the record of the case as well as impugned award passed by the learned Tribunal. The Tribunal observed at para 6 and 7 of award, which is reproduced as under :
"6. The complaint exh.33 lodged by Rajeshkumar Hasmukhlal Trivedi, the owner and driver of the Maruti van involved in the accident has specifically stated that while he was returning from Abu Ambaji road and was proceeding towards Surat along with his family members at about 1.10 AM the luxury bus came in excessive speed and dash with his Maruti van which was badly damaged and one of the door of van was separated. His wife was thrown away from the van and minor female child was also thrown on the road in an unconscious condition and his son has expired on the spot. He has corroborated that the driver of the luxury bus came driving his vehicle rashly and negligently and dash with his maruti van. That in the said accident some of the passengers of the luxury bus were also injured. Panchnama exh.34 corroborates the say of the complainant and attracts the doctrine of Res Ipsa Loquitor whereby it reveals that bus had skided out of the road and dash with a tree and the passengers sitting around the driver and conductor were seriously injured. Looking to the documentary evidence produced on record and having gone through the deposition of injured petitioner exh. 30 and co traveller it becomes quite clear that accident occurred due to rash and negligent driving on the part of luxury bus driver and so far as the involvement of Maruti car is concerned, the driver of the maruti van himself is affected in the said accident. He himself has lodged the complaint exh.33. Thereby looking to the complaint and panchnama of scheme of occurrence exh.34, the opponent no.4 is in no way involved nor liable for any of his negligent driving leading to the accident in question and therefore, he cannot be held liable along with rest of the opponents for tortuous liability. I decided issue no.1, 1/A in the affirmative holding opponent no.1 solely negligent for the accident occurred on 21.11.1999 and I decided issue no.2 in negative relating to opponent no.4.
7. So far as the nature of injuries caused to the petitioner is concerned, the petitioner had sustained fracture through the middle shaft or clavicle with overlapping of fracture fragment. The injury certificate was admitted in Civil Hospital on 12.1.2000. The x ray has been taken which shows the fracture of left clavicle. The report is produced at exh.30. He was treated with plaster and he had to remain in hospital where he was attended by his wife during treatment. He was adviced rest for two months. These facts are further corroborated by the certificate issued by Dr. Hiren P. Maniar M.S. Ortho. The certificate issued by Dr. Maniar is produced on record. "
5. In view of the above, I am in complete agreement with the findings recorded by the learned Tribunal. I am of the opinion that the learned Tribunal has awarded the amount of compensation of Rs.1,00,000/- is just and proper and so far issue of negligence is concerned, the learned Tribunal has rightly held the luxury bus is liable for the accident. I do not find any substance in the Appeal. Hence, the impugned judgment and award passed by the learned Tribunal is just and proper and same is confirmed. Hence, the Appeal is dismissed with no order to costs.
(K.S.JHAVERI,J.) ynvyas Top