RANCHHODBHAI MAADHABHAI KOTADIA Vs. ZAHID ISHAKBHAI DALVADI

JUDGEMENT

(1.) THESE appeals under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") are directed against the judgment and award dated 12th November, 2010 passed by the Motor Accident Claims Tribunal (Auxiliary), Gondal, Camp at Jetpur in M.A.C. Petition No.301 of 2003. First Appeal No.3966 of 2012 has been preferred by the original claimant seeking enhancement of the quantum of compensation awarded as well as challenging the award on the ground that the Tribunal could not have apportioned the amount payable by the owner and the Insurance Company of the bus and the owner and driver of the auto rickshaw, whereas First Appeal No.453 of 2011 has been preferred by the Insurance Company of the auto rickshaw, to the extent the Tribunal has directed the said Insurance Company to first satisfy the award and then recover the amount of compensation from the owner of the auto rickshaw.

(2.) THE facts giving rise to the present appeals are that the claimant Ranchhodbhai Madhabhai Kotadia met with an accident on 29th May, 2003 at about 06:30 p.m. near the Highway Home Hotel, between Virpur and Kalavad, while he was coming from Gondal to Kalavad in a Chhakado rickshaw bearing No.GJ -11 -V -4878 when an Eagle Travels bus dashed against the rickshaw due to which, the claimant fell from the rickshaw and the bus ran over his left leg causing grievous injuries. It was the case of the claimant that the bus was being driven in a rash and negligent manner and that on account of the injuries sustained by him, his left leg had to be amputated as a result whereof; he is not able to work as an agriculturist. The claimant, accordingly, filed a claim petition under section 166 of the Act seeking compensation of Rs.5,00,000/ -. It was the case of the claimant that his income was Rs.3,000/ - per month and that his age was 45 years at the time of the accident.

(3.) THE Tribunal, after appreciating the evidence on record, came to the conclusion that the drivers of both the vehicles were equally negligent and responsible for the accident. The Tribunal found that the claimant was travelling in a rickshaw as an illegal passenger and that the driver of the rickshaw was not holding a valid and effective licence to drive a goods vehicle. Having regard to the fact that the claimant was a gratuitous passenger in a goods vehicle, the Tribunal held that the Insurance Company of the rickshaw was not liable to indemnify the insured. The Tribunal, however, ordered that though the owner of the rickshaw was liable to pay the compensation for the negligence of his driver, the Insurance Company of the rickshaw should be ordered to pay the compensation at the first instance and then recover it from the owner. On the question of quantum, the Tribunal observed that the claimant in his claim petition, had stated that he was earning Rs.3,000/ - per month, whereas in his deposition, he had stated that he was earning Rs.4,000/ - per month by doing agricultural work and the work of diamond polishing. Having regard to the documentary evidence in the nature of extracts of the revenue record which were produced on record, the Tribunal believed that the claimant was an agriculturist.