[1] By way of this appeal, the appellant - Insurance Company has challenged the impugned judgment and award dated 14.08.2001 by the Motor Accident Claims Tribunal (Aux.), Ahmedabad rendered in Motor Accident Claims Petition No.785/1995 whereby the Tribunal has awarded compensation of Rs.1,80,000/- with interest at the rate of 9% p.a from the date of petition till realization.
[2] The facts of the present case are that on 01.01.1993, the accident took place. In the said accident, Joharbhai Turabhai Sakir sustained injuries and thereafter died. Therefore, the legal heirs of the deceased filed claim petition being Motor Accident Claims Petition No.786/1995 praying for compensation of Rs.3,00,000/-.
[3] Learned advocate for the appellant submitted that the accident in question occurred on account of the sole and exclusive negligence on the part of original opponent No.1 who was the rickshaw driver of the rickshaw involved in the accident. He submitted that the truck was on the left side of the road at the place near octroi naka and the driver of the truck had gone to pay the octroi duty at the check post and it was the rickshaw driver who drove the rickshaw rashly and negligently and collided behind the truck and thus accident took place. He submitted that after disbelieving the testimony of the driver of the rickshaw, the tribunal erred in fastening 50% negligence on the part of the driver of the truck without there being any evidence to substantiate the finding. He submitted that the truck was parked in the middle and it was an error in law to fasten equal liability on the part of the driver of the truck. He, therefore, urged that the appeal is required to be allowed.
[4] Heard learned advocate for the respondents and they opposed the present appeal.
[5] Having considered the rival submissions of the parties and perused the evidence on record, it appears that the rickshaw dashed behind the truck and, therefore, the view taken by the tribunal regarding 50% liability of the Insurance Company, opponent No.4 and 50% liability of the opponent Nos.1 to 3 is not justified. Considering the findings of the Tribunal, it appears that the Tribunal has committed an error in observing that both the vehicles must equally share liability, as the claim of the third parties i.e. the original claimants shall not be defeated merely because the drivers of the vehicles involved in the accident did not disclose the correct facts before the Tribunal. In my view, the appeal requires to be allowed in part.
[6] For the foregoing reasons, the appeal is allowed in part. The impugned judgment and award passed by the Tribunal is quashed and set aside only qua the extent of imposition of liability upon the appellant-Insurance Company to satisfy the award. It is, however, observed that if the amount deposited before the Tribunal is already withdrawn by the original claimants, the same shall not be recovered from the original claimants but, the appellant-Insurance Company shall be at liberty to recover the same from the owner of the offending vehicle. But, if the amount has not been withdrawn by the original claimants, the same shall be refunded to the Insurance Company and the claimants shall be at liberty to recover the balance amount from the owner of the offending vehicle. The amount is deposited before this Court, the same is transmitted to the Tribunal. No order as to costs.
[ K. S. JHAVERI, J. ] vijay Top