MARIYAMBEN RATANJIBHAI GAMIT Vs. PANKAJBHAI SHANTILAL BHULA

JUDGEMENT

(1.) The appellants - claimants of Motor Accident Claim Petition No. 38 of 2015 (claim petition) have challenged the judgment and award dtd. 9/10/2019 passed by the learned Motor Accident Claims Tribunal (Main), Tapi at Vyara (Tribunal), mainly on the ground that the learned Tribunal has erred in attributing 30% negligence of the deceased contending that the respondent No. 1 - driver of the Maruti Car ought to have been held solely negligent for the accident and that the award under the head of loss of love and affection has not been granted to the children of deceased.

(2.) Learned advocate Mr. Hiren Modi for the appellants - claimants, referring to the facts of the case, stated that on 16/5/2015, deceased Ratanjibhai Gamit was proceeding from Abhava to Althan by driving motorcycle being Honda Activa bearing registration No. GJ-5-LL-5735 on the correct side of the road and in moderate speed, following traffic rules and regulations. Referring to the Panchnama of place on accident, the learned advocate for the appellants submitted that the accident had taken place in front of Radhe Radhe Farm at about 2:30 p.m. and the Panchnama of the place of accident suggests that a Maruti Car, bearing registration No. GJ-05-CB-5607 had entered on the Western side of the road and thereafter, the accident had occurred. In view of the facts of the case, the learned advocate for the appellants states that the learned Tribunal has erred in attributing 30% negligence on the deceased, while it was total negligence of the car driver who had also failed to step into the witness box to lead the evidence about the accident and thus, stated that adverse inference could also be drawn only on that fact of no evidence from the side of driver of the Maruti car.

(3.) Countering the arguments, learned advocate Mr. V. C. Thomas for the respondent No. 2 - insurance company stated that the learned Tribunal has examined the facts and has rightly attributed 30% negligence to the Activa driver where, as per the Panchnama, the accident had occurred in the middle of the road and the Northern - South Tar road is having width of about 30 ft. Thus, there was ample space for the Activa driver to be within the inner space for two wheeler rather than extending to the middle of the road. Learned advocate Mr. Thomas for the insurance company submitted that it is not a case of the appellants - claimants that there was any intervening vehicle between both the drivers which could not have viewed by each on on 30 ft. wide road. He submitted that since the car driver was charge-sheeted, he would not have stepped into the witness box rather, the claimants could have examined the pillion rider i.e. Babubhai Raisingbhai Gamit to prove the sole negligence of the motor car driver. The learned advocate for the insurance company further submitted that the evidence before the learned Tribunal is to be examined in independent way and the only fact that the car driver has been charge- sheeted, could not lead to a conclusion that he was exclusively liable for the accident.