1. This appeal under Section 173 of the Motor Vehicles Act, 1988, arises out of judgment dated 31st December, 2011 passed in MACP No. 1273 of 2008 by Motor Accident Claim Tribunal (Auxiliary) Vadodara at Chotta Udaipur, in a case where the claimant claim compensation of Rs. 7,00,000/-.
2. The short facts of the case of the appellant can be stated in brief as under:-
That on 12.5.2007 at about 12.30 hours in the noon, the appellant was returning from Bodeli to Vadatalav by driving his Motor Cycle bearing Engine No. AFSD 6/367180 and Chasis No. MD/625 KF 5761-D 37806 and a that time near Vankutir three way road, near Jetpur-Pavi Town, the driver of the Motor Cycle No. GJ 19 L 2335 came from opposite side with full speed, rashly and negligently, and thereby, he gave dash to the Motor Cycle of the appellant and therefore, the appellant fell down on the road and therefore, he sustained grievous injuries on different parts of his body and thereafter offending Motor cyclist absconded from the scene of offence. It is alleged that the accident in question is occurred due to rash and negligent driving on the part of the driver of aforesaid offending Motor Cycle. The petitioner had, therefore, claimed Rs. 5,00,000/- as compensation along with the interest @ 12% p.a. under M.V. Act, under different heads for the reasons stated in the claim petition, Exh. 1. Thereafter, the said petitioner has enhanced his claim upto Rs. 7,00,000/- as per order passed below Exh. 17 in this matter.
3. Upon filing the claim petition, the insurance company was heard and given due opportunities and thereafter issues came to be framed at Exh. 16 which reads as under:
Whether the petitioner proves that he sustained injuries on account of rashness or negligence in driving on the part of the driver of the vehicles involved in the accident?
What amount, if any, the claimant is entitled to by way of compensation and from which of the opponents?
What order?
4. Upon appreciation of facts including complaint, Exh.21, panchnama Exh.22, Charge-sheet Exh. 23, Injury Certificates Exh. 27 and 30 and the backdrop in which the accident had taken place, the Tribunal found the driver of the Motorcycle No. GJ 19 L 2335 was negligent to the extent of 90% and contributory negligence of the applicant was determined to the extent of 10% only.
5. The Tribunal also considered other aspects including medical treatment, expenses incurred for such treatment, certificate produced about income, age of the victim and relevant criteria multiplicand and multiplier of 17 years was applied and awarded compensation of Rs. 6,47, 640/- with 9% interest p.a. with usual conditions safeguarding the interest of the claimant. It is important to note that the Tribunal has extensively considered the law laid down by the Apex Court to compensate in the case of person who is seriously injured and affected.
The above award is under challenge mainly on the ground of determination of negligence of the driver of the motorcycle which was insured with the appellant, insurance company to the extent of 90% and that all the claimant to the extent of 10% only.
6. Learned advocate for the appellant, insurance company vehemently contended that the complaint in question was filed after 18 days and the claimant who was examined adhered to his version in the complaint about collision of the vehicles on the middle of the road but looking to the width of road from east side which was 15 feet wide coupled with the record of panchnama would reveal that the applicant - claimant was equally negligent and contributory negligent could have been on higher side on the part of the victim whose right leg was amputated above knee. To the above extent, the Tribunal erred in holding the driver of the motorcycle insured with the appellant, insurance company negligent to the extent of 90%. Inter alia, learned advocate for the appellant, insurance company would further contend that diverse inference against driver of the motorcycle insured with appellant could not have been drawn because the driver failed to appear during the proceedings of the claim petition and in absence of any other material on record judgment and award of the Tribunal to the extent of holding the driver of the motorcycle insured with the appellant Insurance Company negligent to the extent of 90% requires to be quashed and set aside.
8. Upon perusal of the record of the claim petition, judgment delivered therein and on appreciation of submissions of learned advocates for the parties, it is not in dispute that the appellant Insurance Company was given full opportunity to examine the driver of the motorcycle insured with the Insurance Company who was held negligent to the extent of 90% but no effort was made by the appellant Insurance Company and admittedly the said driver was not examined. Further if the above aspect is seen along with other relevant record namely, the complaint, the panchnama of the place of accident, the charge-sheet and other deposition including the cross-examination of the complainant victim it is beyond any doubt that the driver of the vehicle insured by the appellant-Insurance Company was certainly negligent and conclusion arrived by the MACP Tribunal in this regard cannot be said to be in any manner contrary to law or against the evidence produced on record warranting any interference by this Court in exercise of appellate power. That, basically arguments advanced on the above issue of holding the driver of the motorcycle insured with the appellant Company and negligence to the extent of 90% other aspects do not require to be considered at length.
9. In absence of merit the appeal fails and is summarily dismissed.
10. In view of this, no order is Civil Application.
[ANANT S. DAVE, J.] //smita// Top