KUSUMBEN VIPINCHANDRA SHAH Vs. ARVINDBHAI NARMADASHANKAR RAVAL

JUDGEMENT

(1.) This appeal at the instance of the claimants under Section 173 of the Motor Vehicles Act, 1988 is directed against the judgment and award dated 20.2.2006 of the Motor Accident Claims Tribunal, Baroda in MAC Petition No.691 of 1995 in so far as the Tribunal after having determined the amount of compensation at Rs.3,15,000/- has made the award for only Rs.1,26,000/- with proportionate costs and interest at the rate of 7.5% per annum.

(2.) The appellants are the parents of one Sanjiv, a young qualified engineer who died at the age of 24 years in a motor vehicle accident between a jeep belonging to the Gujarat Electricity Board where the deceased was employed as an Electrical Engineer and a truck. The jeep belonging to the Gujarat Electricity Board and registered in the name of its Executive Engineer (Transmission) was insured by respondent No.3- New India Assurance Co. Ltd.. The parents of the deceased filed the claim petition for compensation of Rs.10 lakhs. Respondent No.3 ? Insurance Company contested the claim petition and contended in its written statement at Exh.31 that since the driver of the truck involved in the accident was not joined, the claim petition was liable to be dismissed for non-joinder of a necessary party. The contention was also pressed in service at the hearing of arguments. However, relying on the decision of another Division Bench of this Court in Amarsi Jugabhai & Ors. vs. Vijayaben Hemantlal Dhulia, 1996 (1) GLH 1007 = 1996 (3) GLR 493, the Tribunal overruled the objection and held that this was a case of composite negligence and not a case of contributory negligence because the deceased was not driving either of the two vehicles, but the deceased was a mere passenger in the jeep insured by respondent No.3-Insurance Company. On facts, the Tribunal attributed 60% responsibility of the accident to the truck driver and 40% to the jeep driver. The Tribunal thereafter determined the amount of compensation at Rs.3,15,000/-, but on the ground that the negligence of the jeep driver was only 40%, the Tribunal slashed the amount of compensation payable by the driver, owner and insurer of the jeep to Rs.1,26,000/-. The claimants are aggrieved by this slashing of compensation.

(3.) Mr MTM Hakim, learned counsel for the appellant-claimants has submitted that the settled legal principles enunciated by this Court with utmost clarity have not been properly appreciated by the Tribunal. It is submitted that after rightly overruling the preliminary contention urged on behalf of respondent No.3 that the claim petition was not maintainable on account of non-joinder of the driver/owner of the truck, the Tribunal erred in not making the award for the entire compensation amount against the present respondents i.e. driver/owner/insurer of the jeep.