AMRABHAI MEGHABHAI ALGOTAR Vs. VELJIBHAI KARSHANBHAI AHIR

JUDGEMENT

(1.) The present first appeal is preferred by the claimant. Being aggrieved and dissatisfied with the judgment and award passed in Motor Accident Claim Petition No.1392 of 2009 by the Principal District Judge and Motor Accident Claims Tribunal (Main), Rajkot on 8/10/2013, by which the Tribunal has awarded an amount of compensation of Rs.98,240.00 with 8% interest per annum from the date of claim petition and the said amount can be recovered from the opponent No. 5 as the Tribunal has exonerated the opponent Nos. 1 to 4, more particularly the opponent No. 4, from their liability to pay the amount of compensation. The present appeal is preferred under Sec. 173 of the Motor Vehicles Act.

(2.) The brief facts are that it is the case of the claimant before the Tribunal that on 12/4/2009, the claimant was going in a Rickshaw bearing a registration No. GJ-13-V-690, at that point of time, a car bearing registration No. GJ-1-HM-6816 and the Truck bearing registration No. GJ-12-Y-9745 have met with an accident. It is the say of the claimant in the claim petition that rickshaw dashed from behind the Truck as the Truck has met with an accident with the Santro Car. That the car was going at a full speed and trying to over take the Truck from the wrong side and dashed with the Truck and therefore the Truck has damaged at front part and accordingly the accident has occurred due the negligence of the Santro car as well as Truck, therefore, the claimant has received serious injuries and the claim petition is filed to get the compensation. That, the Tribunal has issued notice. The compensation to the tune of Rs.2,50,000.00 has awarded in the claim petition. That, the claimant was earning Rs.3000.00 per month by driving Rickshaw and he was aged 27 years, at the time of the accident. That, as per the medical certificate the claimant has received serious injuries and the claim petition is filed to get the compensation. That, the Opponent Nos. 2 and 4 Insurance companies have filed written statement at Exh.17 and disputed the averments made in the claim petition. Thereafter, the Tribunal has proceeded further by framing the issues for determining at Exh.25 and thereafter, the claimant has deposed at Exh.27 and has also produced documentary evidence like FIR at Exh. 29, a copy of the Panchnama at Exh. 30, a copy of the RC Book of the vehicle No. GJ-12-Y-9745 at Exh. 31, a copy of the RC Book of the vehicle No. GJ-13-V-690 at Exh. 32, a copy of the Insurance - Policy of the vehicle No. GJ-13-V-690 at Ehx. 33, a copy of the Injury Certificate issued by Dr. Badal at Exh. 34 and 38, a copy of the permanent disability issued by the Dr. Kothari at Exh. 41 and a copy of the certificate issued of the Car No. GJ-1-HM-6816 at Exh. 50 and other documents and the Insurance Company also produced letter of Insurance Company and driving licence of the claimant at Exh. 53. Thereafter, the Tribunal has proceed further and found that the Opponent Nos. 1 to 4 are not liable to pay the compensation and only the Opponent No. 5, who is the owner of the Car bearing registration No. GJ-1-HM-6816, who has found negligent in causing the accident. At the time of the accident, the Santro Car loaded with the bottles of liquor and therefore, the car was going at excessive speed and dashed with the Truck and therefore, only the Car is found negligent in causing the accident and therefore, the liability of the car is held and therefore, being aggrieved with the amount of compensation as well as exoneration of the Opponent Nos. 1 to 4 from the liability to pay the compensation, the present appeal is preferred by the claimant to get the amount of compensation. The learned advocate Mr. Nishit Bhalodi for the claimant- appellant has placed reliance on the judgment of the Hon'ble Apex Court in case of Attar Sinh reported in 2016 ACJ 1, by which he has said that the liability of the car driver and the Truck driver was attributed in that case, by the eye witness but the Tribunal was found that the liability on the ground of that claimant had been set up case of negligent against the driver of the Tempo allowed the appeal filed by the tempo driver. The Hon'ble Apex Court found that the eye witness observed that the case was at excessive speed but since the driver of the tempo could not remove his vehicle from the way of the Car so that both the driver were negligent equally for the accident. It is the case of composite negligent, the claimant is entitled against driver, owner and the Insurance Company jointly and severally. He has further submitted that in view of the judgment, the claimant can recover from the any of the driver but in the instant case, since the driver has committed error by not holding opponent No. 4 - Insurance Company liable to pay the compensation as risk of the rickshaw driver was also covered by the Policy, which is issued by the Insurance Company - respondent No. 4, where the premium is paid towards risk of the driver of the rickshaw. He has pointed out that from the policy issued in the name of the Veljibhai, where the 100% premium is charged by the Insurance - company. He has submitted that written statement filed by the Opponent No. 2 - ICICI Lombard - Insurance Company, which is being insurer of the rickshaw of the claimant also and is Insurance Company for the Truck and therefore, he has submitted that liability of the Opponent Nos. 1 to 5 should be held by allowing appeal in view of the Judgment delivered in case of Attar sinh and looking to the factual aspect, Panchnama and deposition of the claimant that though driver of the Car can also be more negligent but the driver of the Truck should also held negligent and therefore, he submitted that the finding of the Tribunal by only holding driver of the car is erroneous and required to be interfered with. He further submitted that the Tribunal has committed an error in awarding very meager amount of Rs.98,240.00 only which can be awarded mere looking to the injuries received by the claimant and therefore, he has prayed that the amount of compensation can be enhanced properly by considering the settled law by various judgment of the Hon'ble Supreme Court as well as Hon'ble High Court in awarding the compensation to such claimant.

(3.) Per contra, learned advocate Mr. Nikunt Raval for the opponent No. 2 - Insurance company has submitted that the Tribunal has rightly discussed the aspect of the negligence in its judgment in Para Nos. 7,8, 9 and 10. He further submitted that the Santro car which has tried to overtake Truck and dashed with the Truck on the wrong side of the front wheel and it is found from the inspection of the Car that the car was loaded with bottles of liqour and the Tribunal has rightly presumed that the Car was at a excessive speed, from the FIR, Panchnama, there is no negligence of the Truck or rickshaw can be found. He has further submitted that though the driver of the Truck is not entered in to the witness box but looking to the evidence which is produced by the claimant himself, driver of the car can be held 100 % negligence in the facts in the present case and therefore, Tribunal has not committed any error in exonerating the opponent Nos. 1 to 4 from the liability to pay the compensation. He has further submitted Tribunal has not committed any error in awarding the compensation Rs.98,240.00 with 8% interest per annum looking to the evidence available on record to the Income, etc. and the Tribunal has rightly given the amount of the compensation under the various Act and therefore, he has prayed that the appeal is required to be dismissed.