1 By way of filing this appeal under Section 173 of the Motor Vehicles Act, 1988 the appellant - insurance company has challenged the judgment and order dated 24th December 2001 passed by the learned Motor Accident Claims Tribunal (Aux.) at Surendranagar MAC Petition No.61 of 1991 whereby the Tribunal has partly allowed the claim petition filed by the claimant.
2 The short facts of the present appeal are that on the date of the incident i.e. on 20th August 1998 the claimant was travelling in auto-rickshaw beaing No.GTD No.8704 from Thangadh and when the said rickshaw reached the place of accident, it was given a dash by the tractor bearing No.GJ-3-9467 due to which the claimant received injuries. The claimant, therefore, filed claim petition claiming compensation of Rs.3 lakhs.
3 On the point of contributory negligence the Tribunal has observed in paragraph 15 of the judgment that the driver of the Tractor has accepted his fault in a criminal case filed against him, arising out of the said accident and paid fine. Therefore, the Tribunal has answered issue No.1 in the affirmative. On the point of income, the Tribunal has considered income of the claimant at Rs.2500 per month and as he sustained 18% permanent partial disability, he was entitled to Rs.450 per month and Rs.5400 per annum towards future economic loss. Considering the age of the claimant, the Tribunal adopted the multiplier of 10 and thereby awarded Rs.54,000 towards future economic loss. Over and above, the Tribunal has also awarded Rs.6,000 under the head of actuall loss of income, Rs.50,000 towards medicines and treatment charges, Rs.15,000 towards Pain, Shock and Suffering, Rs.12,000 towards transportation charges. Thus, in all Rs.137,000 was awarded to the claimant. However, though the Tribunal has held in paragrph 15 of the judgment that the Driver of the Tractor was solely responsible for the accident, he apportioned the contributory negligence of both the vehicles at 50:50 % and directed the appellant - insurance company, insurer of auto-rickshaw to pay Rs.68,500/- to the claimant.
4 Prima facie, the Tribunal has committed error in apportioning the negligence to the extent of 50% each on the Drivers of tractor as well as rickshaw and contrary to the observations made by the Tribunal in paragraph 15 of the judgment. In that view of the matter, the impugned judgment and award of the Tribunal is required to be set aside by allowing the present appeal and the same is hereby quashed and set aside. The amount deposited by the appellant - insurance company is required to be refunded. The amount lying before the Registry is ordered to be transmitted to the Tribunal.
In the result, the appeal is allowed with no order as to costs.
(K.S.Jhaveri, J.) *mohd Top