1. By way of this appeal, the appellant-Insurance Company has challenged the judgment and award dated 30.04.2005, passed by the Motor Accident Claims Tribunal(Auxi.), Surendrangar, in M.A.C.P. No.170 of 1996, whereby the tribunal has awarded compensation in the sum of Rs.8,27,700/- to the claimants with interest at the rate of 9% per annum from the date of filing of the petition till realization.
2. The brief facts leading to filing of this appeal are that on 27.01.1996 one Ghanshyambhai Thakershi Patel was travelling in a Rickshaw bearing registration No. 6814. When the said Rickshaw reached near Peoples' Co-operative Bank, GIDC Branch, at that time one truck bearing registration No.GJ-13-T-5191, came from the opposite direction and dashed the said Rickshaw. As a result of the said accident, Ghanshyambhai Thakershi Patel, expired. Therefore, the legal heirs of the deceased filed claim petition being M.A.C.P. No. 170 of 1996 before the Tribunal for compensation of Rs.7,00,000/-. The Tribunal after hearing learned advocates for both the parties and after recording the evidence decided the claim petition and passed the award as stated hereinabove against which the present appeal is filed by the appellant-Insurance Company.
3. Learned counsel for the appellant contended that the tribunal erred in attributing the negligence on the part of the truck driver to the extent of 100%. He further contended that the Tribunal has wrongly awarded Rs.1,07,000/-towards conventional amount. Therefore, she prayed to allow this appeal.
4. I have heard learned advocate appearing for the appellant. As regards the contention of negligence, the Tribunal while deciding the said issued in paragraph 9 of the impugned judgement has observed as under:-
"Here in the instant case, FIR positively points a finger against the truck, of course, number of the truck has not been mentioned therein. But, at the same time, the driver of the offending truck has positively admitted in his statement Ex.79 regarding commission of occurrence by him. In the same way even the driver of the rickshaw has also made a statement regarding involvement of the said truck. Therefore, there appears positive evidence of the driver of the offending truck which is admissible as per the said pronouncement of our own High Court. Therefore, now the burden shifts on the Insurance Co. to prove non-involvement of the offending truck in the present occurrence which could not be proved by it. Thus, reading the oral testimony of witness, I feel no hesitation to hold the offending truck driver sole negligent for the said occurrence. So far deposition of the said eye witness Ex.72 is concerned, I have to say that the said witness has not been declared hostile so far number of the offending truck is concerned before the Criminal Court. What he has deposed that he could not know the number of the truck but he was not questioned regarding running away of the truck after the accident and in respect of its running away. Even otherwise, attention of this witness, viz., Hemanshubhai Thakker has not been drawn unless that has been proved, oral testimony recorded before the Criminal Court cannot be taken as a support/corroboration for the Insurance Co. Hence, I do not agree with any of the grievance voiced by the learned advocate for the Insurance Co. and, therefore, I feel no hesitation to term entire occurrence of the accident caused only on account of negligent driving on the part of the truck driver...."
5. In view of the above, I am in complete agreement with the view taken by the Tribunal in attributing the negligence on the part of the driver of the truck to the extent of 100%. So far as the contention regarding awarding of Rs.1,07,000/- towards conventional amount is concerned, I am of the view that the Tribunal has committed error in granting Rs.1,07,000/- towards conventional amount, it should not be more than 25,000/-. Even otherwise, the claim petition is filed for compensation of Rs.7,00,000/-. However, the Tribunal has awarded Rs.8,27,700/-. It is not permissible, in view of the decision of the larger bench of this Court in the case of Dr. Urmila J. Sangani Vs. Pragjibhai Mohanlal Luvana, reported in 2000 ACJ, 1125, wherein it has been categorically held by the Larger bench that it is not open to a Claims Tribunal to award the amount of compensation higher than the amount claimed by the claimant in the claim petition on the ground that the Tribunal has jurisdiction to award just compensation.
6. In view of the above, the Tribunal cannot award higher than the amount claimed by the claimants. Therefore, the claimants are only entitled to Rs.7,00,000/- as claimed by them. Therefore, the excess amount of Rs.1,27,700/- be refunded to the Tribunal with interest and cost, if any, if the same is deposited by the appellant-Insurance Company with the Tribunal. The amount, if any, lying with the Registry be transmitted to the Tribunal forthwith.
7. The judgement and award of the Tribunal is modified to the aforesaid extent. Decree be drawn accordingly. The present appeal is partly allowed.
[K.S.JHAVERI,J.] pawan Top