1. By way of these appeals, the appellant-original opponent No.3 has challenged the common judgement and award dated 30.11.1998, passed by the Motor Accident Claims Tribunal(Auxi.2), Kachchh at Bhuj, in M.A.C.P. No. 151 of 1999, whereby the tribunal has awarded compensation in the sum of Rs. 1,50,200/- to the claimants with interest at the rate of 9% per annum from the date of filing of the petitions till realization.
2. The brief facts leading to filing of this appeal are that on 30.11.1998 one accident occurred between Rickshaw bearing registration No. GJ-12-T-932 and Taxi. As a result of the said accident Dilip Dhanji Ragor sustained grievous injuries. Therefore, he filed claim petition being M.A.C.P. No. 151 of 1999 before the Tribunal for compensation. 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 herein above against which the present appeal is filed by the appellant-original opponent No.3.
3. Learned counsel for the appellants contended that the tribunal erred in passing the impugned judgment and award. The tribunal failed to appreciate the material on record in its true perspective. Therefore, he has prayed to allow the present appeals.
4. Heard learned counsel for the parties and perused the material on record. The Tribunal while deciding the claim petition, in para 7 has observed as under:-
"In order to substantiate his say the petitioner himself has filed his affidavit at Exh.67. He has reiterated the same facts as stated by him in the claim petition. The sum and substance of the said affidavit is that the petitioner was travelling in the aforesaid rickshaw which went out of order due to mechanical failure. So the said rickshaw was being towed by the aforesaid Taxi but as the driver of the said Taxi drove it rashly, recklessly and negligently, the said taxi dashed with a tree as a result of which the rickshaw also dashed with the taxi and the petitioner sustained serious injuries resulting into permanent partial disablement. The witness was cross-examined by the learned advocates for the opponent Nos. 3 and
5. During the cross-examination by the learned advocate for the opponent No.3 the witness admitted that the taxi driver was driving the said taxi carefully but looking to the evidence on record particularly the FIR and the Panchanama, it appears that the complaint was lodged against the driver of the taxi only, who dashed the taxi with a tree and caused the accident. The Panchanama also supports the FIR, so when the drive of the taxi dashed the said taxi with a tree then it cannot be said that he was not driving the said taxi rashly, negligently and in speed but on the contrary, it came out from both these documents that the opponent No.1 was driving the said taxi rashly, negligently in speed and caused the said accident in which the petitioner sustained the serious injuries resulting into permanent partial disablement. When the said rickshaw was being towed by the said taxi, in that case it cannot be said that the rickshaw driver was negligent in driving the said rickshaw. However, it is not on record whether the driver, opponent No.1 is acquitted or convicted. It is also on record that the FIR was lodged only against driver opponent No.1 and no complaint was made against the driver of the rickshaw. The driver of the taxi, opponent No.1 has not stepped into witness box to explain the circumstances under which the accident took place. Therefore, looking to the deposition of the petitioner and other documents evidence on record in the form of FIR, Ex-68, Panchanama of scene of occurrence, Exh.69 etc. and in absence of the evidence of the opponent No.1 it is abundantly clear that adverse inference can be drawn against him meaning thereby that he has not come before this Tribunal because he was unable to exonerate himself from the liability of this accident..."
5. In view of the above, I am in complete agreement with the reasonings given by and the conclusion arrived at by the Tribunal. Apart from that learned counsel for the appellants is not in a position to show anything from the record to take a different view in the matter. Therefore, the appeal is devoid of any merits and the same is accordingly dismissed.
[K.S.JHAVERI,J.] pawan Top