MANGALBHAI GOTAHAI ZALA Vs. NARESHBHAI VIJAYBHAI DABHI

JUDGEMENT

(1.) The present First Appeal, under Sec. 173 of Motor Vehicles Act, 1988, is preferred by the appellant - original claimant, being aggrieved and dissatisfied with the judgment and award dtd. 11/7/2012 passed by the Motor Accident Claims Tribunal (Aux.), Nadiad in Motor Accident Claim Petition No.753 of 2008, by which the Tribunal has rejected the claim petition.

(2.) Brief facts of the case are as under:

(3.) Learned advocate Mr. Paresh M. Darji for the appellant - original claimant has submitted that the Tribunal has committed gross error in dismissing the claim petition by observing that the truck is only negligent as per the evidence available on record, more particularly, the evidence of the P.S.I. Chauhan Bhupendrasinh of Mahemdabad Police Station, who has deposed at Exh.43. He has also drawn the attention of this Court towards para 12 of the impugned judgment and has submitted that since the claimant was travelling as a passenger in the rickshaw, the claimant can file claim petition against either of the tortfeasors i.e. rickshaw and/or truck. He has relied upon the judgment of the Hon'ble Apex Court in the case of Khenyei versus New India Assurance Co. Ltd. reported in (2015) 9 SCC 273 and has submitted that it is the case of composite negligence for the claimant and therefore, the Tribunal has committed serious error in dismissing the claim petition by observing that the driver of the truck is found sole negligent, that too the owner and the insurance company of the truck have not joined as party respondents in the claim petition. He has submitted that the Tribunal has committed error by not keeping in view of ratio laid down by this Court in the case of Kusumben Vipinchandra Shah versus Arvindbhai Narmadashankar Raval reported in 2007 (1) GLH 601.