NATIONAL INSURANCE COMPANY LIMITED Vs. BHAVNABEN ANILBHAI KANJARIYA

JUDGEMENT

(1.) The present appeal is preferred under Section 173 of Motor Vehicles Act by original opponent No.2-Insurance Company challenging impugned judgement and award dated 28-01-2020 passed by learned MAC Tribunal, (Aux.), Jamnagar in MACP No. 44 of 2007. This Court vide its order dated 13-01-2021 has admitted the appeal and granted conditional stay against execution of impugned judgement and award. Today, stay application has been listed for confirmation of stay. It is also reported to this Court that awarded amount has been deposited by appellant-applicant Insurance Company with the Tribunal. However, it is requested by learned Advocates of both sides that considering the issue involved in matter and more particularly since the claim petition is of the year 2007 and appeal is mainly on issue of negligence wherein presence of other respondents i.e. owner of truck involved in accident is not required, therefore they have requested this Court to hear the appeal finally. The copy of relevant evidence has jointly been supplied by learned Advocates of the parties to the Court thereby it can decide issue in absence of record & proceedings of matter.

(2.) Considering the request made by learned Advocates for both the parties and after perusing the record, this Court has thought it fit to take up appeal for final hearing.

(3.) Learned Advocate Mr. Shelat has submitted that accident in question had taken place on 21-11-2005 at about 8:00 p.m. wherein deceased was riding his motorcycle bearing registration No. GJ-10-N-9056 rashly and negligently dashed with stationary truck number bearing registration No. GQA-7130 insured with the appellant which was parked on edge of road. He has further submitted that the FIR came to be filed by pillion rider of motorcycle No. GJ-10-N-9056 wherein it has been clearly stated that deceased and complainant both were going on above said motorcycle and talking to each other when they suddenly saw the above said insured stationary truck in the light of motorcycle but before deceased could do anything, his motorcycle dashed with stationary truck. So, according to learned Advocate Mr. Shelat, it is a case of sole negligence of rider of motorcycle for causing accident as deceased motorcyclist has not taken proper and reasonable care while riding motorcycle and since he was talking with pillion rider he could not notice the stationary truck which resulted into accident. Alternatively, he has submitted that the learned Tribunal ought not to have held stationary truck driver 80% negligent but it would be equal negligence of both drivers of vehicles involved in accident. Thus, he has requested this Court to allow appeal.