IFFCO-TOKIO GEN INS CO LTD Vs. KANCHANBEN

JUDGEMENT

(1.) The present First Appeal, under Sec. 173 of Motor Vehicles Act, 1988, is preferred by appellant-Iffco Tokiyo General Insurance Co. Ltd. (Original Opponent No.1), being aggrieved and dissatisfied with the judgment and award dtd. 29/9/2010 passed by the Motor Accident Claims Tribunal (Main), Sabarkantha at Himmatnagar in Motor Accident Claim Petition No.1106 of 2006, by which the Tribunal has awarded Rs.3,73,000.00 with 7.5% per annum interest to the claimants, by holding Opponent No.1 liable.

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

(3.) I have heard Ms. Kirti Pathak for the appellant - insurance company. She has contended that the Tribunal has not considered that the said liability would incur only in case when the owner of the vehicle complied with the terms and conditions of the policy, which was not so in the present case. She has further contended that the Tribunal ought to have considered that the accident was caused due to contributory negligence wherein, the jeep driver was having larger contributory and ought to have apportioned liability as per specific shares and the Tribunal has erred in coming to the conclusion that accident was caused due to 75% negligence of the driver of the said motorcycle. She has further contended that adverse inference may be drawn against the driver of the Jeep, who, despite service of summons, has not stepped into witness box before the Tribunal. She has further contended that in the facts and circumstance of the case, the Tribunal has committed an error by holding the insurance company liable, wherein the driver of the insured vehicle himself is responsible for occurrence of accident. She has prayed to allow this appeal.