1. This appeal has been preferred by original opponents no.1 & 2 in Claim Case No.91/1985 preferred by respondent no.2, original claimant, claiming total compensation of Rs.3.15 Lacs in connection with the vehicular accident that took place on 17.09.1984 involving a Tractor bearing registration No. GAJ 8217 insured with respondent no.1-Insurance Company.
2. The said Claim Case was allowed in part, by judgment and award dated 14.08.1998, whereby, respondent no.2, original claimant, was awarded total compensation of Rs.1.15 Lacs along with proportionate costs and interest at the rate of 12% per annum from the date of application till its realization.
3. Mr.
Amar Mithani learned counsel for the appellants argued on the aspect of negligence only. He contended that the evidence on record, particularly, the panchnama of the place of accident (Exh.-67) establish that the motor-cyclist was being driven on the wrong side and therefore, the Tribunal ought not to have held the Tractor negligent to the extent of 100% for the accident.
4. Mr.
Anshin Desai learned counsel for respondent no.2 supported the impugned award and submitted that the accident took place on account of the sole negligence of the Tractor. He submitted that the multiplier adopted by the Tribunal is on the lower side considering the age of claimant. However, since it is admitted by Mr. Desai that no cross-objections have been preferred by respondent no.2, this Court is not considering the aspect of quantum in this appeal, particularly, when Mr. Mithani has not argued on the same. Therefore, this Court is required to deal with the issue of negligence only in this appeal.
5. Heard learned counsel for the respective parties. It appears from the panchnama (Exh.67) of the place of accident that the motor-cycle dashed the Tractor on the right side of the Trolly attached to it. The total width of the road is 14 fts. It appears from the panchnama that the place where the accident took place falls in the area which is beyond the distance of 7 fts. that is available for traffic coming from one side of the road. Therefore, evidently, the motor-cycle was on the wrong side of the road. Learned counsel for respondent no.2 has attempted to point out that the motor-cyclist was on the correct side of the road by relying upon the oral evidence of some witness. However, admittedly, there is no eye-witness to the accident in question. The witness concerned was travelling in the Trolly of the Tractor and he has admitted that he has not noticed the accident. In such circumstance, the Tribunal ought not to have held the Tractor 100% negligent for the accident. In my opinion, it would be appropriate to apportion contributory negligence between the Tractor and Motor-cycle at 70 : 30 since the Tractor, being a heavy vehicle, ought to have been driven in a careful and diligent manner. Thus, I apportion contributory negligence between the Tractor and Motor-cycle at 70 : 30.
6. While entertaining the application for stay preferred by the appellants being C.A. No.1009/1999, this Court passed the following order on 06.10.1999;
"Heard the learned counsel for the respective parties. The amount deposited by the appellant in the present appeal shall be transmitted to the Tribunal forthwith. On the facts and circumstances of the case, the ad-interim relief granted earlier stands confirmed, subject to the condition that the applicant herein deposits an aggregate amount of Rupees Sixty Thousand (including the transmitted amount) in Execution Petition No.139/1998 latest by 26th November, 1999. On this deposit being made, the same shall be disbursed / invested in the same proportion by the Tribunal as was done in the case of Rupees One lac fifty thousand deposited by the Insurer. This application is, accordingly, disposed of. "
7. In view of the above order of this Court, the claimant will be entitled to Rs.1,85,500/- out of which the respondent-Insurance Company has already paid Rs.1,50,000/- to the claimant. Therefore, an amount of Rs.35,500/- shall be recovered from the appellants. The balance amount of Rs.79,500/- lying with the Tribunal shall be refunded to the appellants. The impugned award stands modified to the above extent. The appeal stands disposed of accordingly. No order as to costs.
[K.
S. JHAVERI, J.] Pravin/* Top