1.0 This appeal is directed against the judgement and award dated 27.08.2004 passed by the Motor Accident Claims Tribunal (Main), Mehsana in Motor Accident Claim Petition No. 168 of 1992 wherein the learned Tribunal has partly allowed the aforesaid claim petition by awarding compensation in the sum of Rs. 230000/.
2.0 On 03.11.1991 Zahurmahammad was going from Sidhhpur to Unja at about 11. 30 hours in Rickshaw No. G.J. 2T 53. When the rickshaw was going in moderate speed at Khadi cross road between Brahmanvada Highway, the jeep No. G.A.W 7240 came in full speed and in a rash and negligent manner dashed with the rickshaw as a result of which Zahurmahhamad received severe injuries and he died during the treatment in the hospital. The claimants 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 appearing for the appellant contended that the learned Tribunal has erred in evaluating the evidence on record while coming to the conclusion of awarding the compensation. The panchnama of the scene of offence, the oral evidence led in the matter and the evidence on record clearly show that the jeep car was coming from the opposite side of the road at a great speed and had attempted to overtake another vehicle with excessive speed and while doing so had crossed the center line of the highway and dashed with the rickshaw. The panchnama of the rickshaw shows that the vehicle was badly damaged and the evidence also shows that the rickshaw driver was thrown out of the rickshaw. He further submitted that the learned Tribunal erred in not properly considering this important factors to determine as to how the accident had occurred.
4.0 Learned advocate for the appellant further contended that the contributory negligence cannot be fastened on the rickshaw driver as he was not at fault at all. The Tribunal has wrongly fastened the liability to the extent of 25% on the rickshaw driver. He further submitted that the jeep driver was not examined.
5.0 Learned advocate for the appellant contended that from the evidence it is not clear as to on which portion of the road, the accident has taken place.
6.0 Learned advocate for the appellant further contended that while awarding compensation no convincing reasons were assigned by the learned Tribunal.
7.0 Learned advocate for the respondent supported the judgement and award of the learned Tribunal and submitted that the appeal may be dismissed.
8.0 As a result of hearing and perusal of the record it appears that the Tribunal has fastened the liability on the rickshaw driver without any cogent evidence. The Jeep driver was not examined. From the evidence on record it is not clear as to on which portion of the road, the accident has taken place. There is also nothing on record to point out as to on which basis the negligence was decided. Even on quantum this court finds that the amount awarded is not justifiable.
9.0 In view of the above, the matter requires reconsideration.
Accordingly, the impugned award is quashed and set aside. The matter is remanded to the Tribunal to consider the same afresh. The Tribunal shall hear and decide the matter as early as possible and in any case within a period of one year from the date of receipt of writ of this order. In the meanwhile the awarded amount shall be invested in a fixed deposit by the Tribunal with any nationalized bank in the name of the Nazir of the Tribunal and the receipt thereof shall be retained with the Tribunal. The interest that may be accrued on the said deposit shall not be disbursed. If ultimately the claimants succeed in the claim petition, the amount lying in FDR shall be paid to the claimants. In case, the claimants fail in the main claim petition, the said amount shall be withdrawn by the Insurance Company.
10.0 Record and Proceedings if lying with this Court to sent to the concerned Tribunal forthwith.
(K.S.JHAVERI, J.) niru*