ORIENTAL INSURANCE CO. LTD Vs. NAYNABEN HARSHADKUMAR KOTECH

JUDGEMENT

(1.) The first appeal at the instance of the Insurance Company and the Cross Objection at the instance of the claimants are directed against the judgment and award passed by the Motor Accident Claims Tribunal (Main) Rajkot District, Rajkot dated 28th October, 1998 in Claim Case No. 1529 of 1997 ("herein after referred to as "the Tribunal").

(2.) The claim petition was resisted by the Insurance Company by filing reply at Exh. 11. Before the claims tribunal, the claimant examined himself and produced documentary evidence in support of his claim. On the basis of the evidence, the Tribunal came to the conclusion that the respondent no.2 original opponent no.1 was negligent for the accident to the extent of 75 % and the claimant was negligent to the extent of 25 %. As regards compensation, the Claims Tribunal assessed compensation at Rs.20,00,000.00. After deducting 25% therefrom,the Tribunal held that the claimant shall be entitled to Rs.15,00,000.00 as compensation. The Tribunal, thus, partly allowed the claim petition and ordered the respondents to pay Rs. 15,00,000.00 with interest at the rate of 15 per cent from the date of the application. The Claims Tribunal clarified that since the amount of compensation of Rs.15,00,000.00 includes Rs.1,00,000.00 which is awarded towards future medical expenses, the claimants shall be entitled to have interest on the amount of Rs.14,00,000.00. The claims Tribunal also ordered that if the amount of compensation is paid within the period of three months from the date of the order, then, the amount of compensation shall carry interest at the rate of 12% instead of 15%.

(3.) We have heard learned advocate Mr. KK Nair for the Insurance Company and Mr. M.B. Parikh, learned advocate for the claimants in the First Appeal and the Cross Objection. Learned Advocate Mr. Nair for the insurance company has submitted that the Tribunal has committed grave error in holding that the respondent NO.2 is negligent to the extent of 75%. Mr. Nair submitted that it was a case of total negligence on the part of the claimant himself because the claimant was driving his vehicle on wrong side as a result of which, his vehicle dashed with the scooter coming from the opposite side in right direction. Learned Advocate Mr.Nair took the Court through the cross examination of the claimant and pointed out that the claimant himself has stated that he was going from the north to south. On west of the road, Gayatri Petrol Pump was situated. The road was of the width of 22 ft. There was divider in-between the road. After getting the petrol filled in and coming on the road, he turned towards the southern side and at that time, respondent No.2 original opponent no.1 came from the opposite direction and dashed his scooter with the scooter of the claimant. On the basis of the above said statement made by the claimant in his cross examination, learned advocate Mr. Nair argued that since the claimant after coming out from the petrol pump, immediately moved his scooter towards the southern side which was wrong side for the claimant, his scooter dashed with the another scooter for which the claimant only was responsible. Learned advocate Shri Nair also argued that even as per the panchanama, scooter of the claimant was found on the wrong side of the road i.e. at the distance of 5 ft. away from the edge of the road towards eastern side. As per the panchanama, width of the road is 22 ft. and the steering of scooter of claimant was facing southern side and from the rear wheel of the scooter, divider wall was at the distance of 13 ft. This panchanama read with the statement of the claimant himself establishes that it was the claimant who alone was negligent for causing the accident and, therefore, the claimant was 100% negligent for causing the accident and the Tribunal has committed grave error in holding respondent No.2 original opponent negligent to the extent of 75%. Learned Advocate Mr. Nair also submitted that in fact there was no eye witness to the accident and in fact, some other person had dashed with the scooter of the claimant and had run away but just to make the appellant insurance company liable, scooter of respondent no.2 is shown to have dashed with the scooter of the claimant, therefore, the appellant insurance company cannot be made liable.