1. Heard learned advocates for the parties and perused the papers on record.
2. The appellant-Insurance Company herein has challenged the award dated 16.08.2003 passed by the Motor Accident Claims Tribunal (Main), Panchmahals at Godhra in Motor Accident Claims Petition No. 680 of 1995 so far as the Tribunal awarded Rs. 6,70,000/- as compensation with interest after holding the driver of the truck negligent to the extent of 100%.
3. It is the case of the claimants that on 01.10.1994 while the driver of the S.T bus was driving the bus, a truck being driven by the original opponent no. 1 in a rash and negligent manner, dashed with the bus. The driver of the bus died on the spot. The claimants being the legal heirs and representatives of the bus driver therefore filed claim petition seeking compensation. The Tribunal after hearing the parties passed the aforesaid award.
4. Mr. Sunil Parikh, learned advocate appearing for Mr. Mehta for the appellant- Insurance Company submitted that the Tribunal erred in attributing total negligence on the part of the truck driver looking to the position of the road, panchnama and other evidence on record. He submitted that the conductor of the bus has admitted in the cross examination that the bus was in the middle of the road. He submitted that considering the measurements of the road and the vehicles in question, the Tribunal has gravely erred in attributing total negligence on the part of the truck driver.
4.1 Mr. Parikh has drawn the attention of this Court to the map of the scene of offence and submitted that it is clear that the width of the road was 21.5 ft. He submitted that the bus was going from east to west whereas the truck was going from west to east and that considering that the bus was being driven on the middle of the road, the driver still had a margin of around 4 ft on the left side. Mr. Parikh submitted that it cannot be said that the truck was completely negligent and even if negligence on the part of the bus driver is considered, it cannot be more than 50% considering the position of the bus and truck before and after the accident.
5. Ms. Japee, learned advocate appearing for Mr. Japee for the claimants strongly supported the award passed by the Tribunal and submitted that the Tribunal has passed the award after considering the evidence in detail and the same does not call for any interference by this court.
6. As a result of hearing and perusal of records, more particularly, the impugned award and the documents on record, it is borne out that the accident occurred as a result of negligence of both the vehicles. The law probability comes into play in such cases. The road was around 21.5 ft wide. The bus was going from eastern direction to western direction and the truck was coming from the opposite side meaning from west to east.
6.1 The width of the bus and the truck is around 7 to 7.5 ft. Therefore, considering approx. 21.5 ft width of the road, each vehicle had around 3.5 ft space available on the left side. The accident happened in the middle of the road. The bus was lying about 5.5 ft away towards southern side from the front wheel of the truck and was facing towards the west. The position of the vehicles in the panchnama is after the accident. The conductor has admitted in the cross examination that the bus was infact being driven on the middle of the road. Even the truck was in the middle of the road. The driver of the truck has neither filed written statement nor has stepped into the witness box to explain as to under what circumstances the accident had occurred.
6.2 Considering the position of both the vehicles before the accident, it can be presumed that both the drivers had a reasonable chance of averting the accident. The Tribunal seems to have committed an error in holding the truck driver solely negligent for the accident in question. It cannot be said that the truck driver was completely negligent. However considering the damage caused to both the vehicles, it appears that more negligence is on the part of the truck driver as it was only the cabin of the driver which was damaged in case of the bus whereas in the case of truck the entire front portion was damaged.
6.3 In that view of the matter, considering the facts and circumstances of the case and the aspect of learned advocate for the bus driver submitting before the Tribunal that in any case, if at all, the Tribunal comes to the conclusion that the ST bus driver was also negligent then the contributory negligence should not be attributed more than 20%, it would be in the interest of justice to apportion contributory negligence of 80%-20% on the truck driver and the bus driver. As far as quantum is concerned, the award is just and proper and no interference is called for.
7. In the premises aforesaid, appeal is partly allowed. The claimants shall be entitled to 80% of the compensation awarded by the Tribunal. The remaining 20% of the amount shall be refunded to the appellant - Insurance Company. The award of the Tribunal is modified accordingly.
(K.S. JHAVERI, J.) Divya//