PRAFULBHAI VITTHALBHAI PATEL Vs. CHAMPAKBHAI F VASAVA

JUDGEMENT

(1.) All these appeals are arising out of common and consolidated judgment and award dtd. 21/11/1997 rendered by the M.A.C. Tribunal [Aux.], Surendranagar in group M.A.C. Petition Nos. 603 to 612 of 1989 with M.A.C. Petition Nos. 654, 656, 657 and 666 of 1989. The appeals are filed by the original claimants seeking enhancement of amount of compensation. When none of the respondents have preferred any appeal against the impugned award, it becomes clear that now there is no issue regarding inter-se liability of the respondents with reference to inter-se negligence of both the tort feasors, so also liability of insurance companies of both the vehicles involved in the accident to make the payment to the claimants. Therefore, factual details of incident and history thereafter are not much material. However, the same is well described in the pleadings and impugned award and, therefore, except recollecting relevant information, the only issue which requires determination by this Court is regarding scrutiny and ascertainment that 'whether amount of compensation awarded in each such claim petition is just and reasonable in accordance with the settled principle of law or whether it requires any modification by way of enhancing the amount of compensation either as prayed for or that may be deemed fit and proper.

(2.) However, it would be appropriate to recollect here that most of the appellants are passengers in one of the vehicles being Matador bearing No. GAA 6317 and thereby they have not contributed anything so far as incident of accident is concerned and, therefore, this is a case of composite negligence of two tort feasors and in absence of any contribution of the appellants/ claimants in the incident, they are entitled to receive full set of compensation from either of the tort feasors irrespective of their inter-se liability based upon the contribution in negligence by them.

(3.) So far as incident is concerned, it is contended and which is not rebutted by any of the respondents that on 25/5/1989 all the claimants were traveling in Matador No. GAA 6317 at about 10.00 pm and near Thapa village on National Highway No. 8-A, when respondent no. 1 was driving his Matador on correct side of the road and proceeding from Chotila to Sayla side, at the place of accident, one truck bearing No. GRQ 4629 driven rashly and negligently and in excessive speed by respondent no. 1, came from opposite side without blowing horn and without observing traffic rules and because of his rash and negligent driving, he lost his control over the truck, which resulted into dragging of truck on wrong side of the road and thereupon, front portion of the truck had dashed with the front portion of the Matador. Thereby, it was almost head on collision, but as observed by the Tribunal, when Matador was on its correct side and when truck has been dragged to some extent on wrong side, after appreciating relevant evidence on record, the Tribunal has held that both the drivers are negligent and therefore, the contribution of the truck driver in negligence is fixed as 60%, whereas negligence of matador driver is fixed as 40%. Therefore, though the insurance companies are liable to indemnify such percentage of amount of compensation, the claimants are entitled to full set of compensation from any of the tort feasors, because their liability is joint and several. However, as recorded hereinabove, such part of the award is not challenged and, therefore, there is no reason to discuss the nature of the incident or the issue regarding contribution of negligence of either of the drivers.