ORIENTAL INSURANCE CO LTD Vs. KOLI RANCHOD LIMBA

JUDGEMENT

(1.) This is an appeal under section 173 of the Motor Vehicles Act, 1988 [hereinafter referred to as 'the Act'] filed by the Oriental Insurance Company Ltd., to challenge judgment and award made by Motor Accident Claims Tribunal [Main], Rajkot District at Rajkot dated 17/4/1995 in M.A.C. Petition No. 115 of 1985. By the said award, the appellant is saddled with the liability to satisfy the award to the extent of 40%. The total amount that has been awarded to original claimant is Rs.50,000/ with interest at the rate of 12% p a from the date of application till the date of realization and the proportionate costs. The Tribunal has held that original opponents no. 1, 3, 6 and 5 are jointly and severally liable to pay the compensation. Appellant is original respondent no. 5.

(2.) According to the claimant, who is respondent no. 1 herein, he was driving Matador bearing registration No. GRP 4124 on 25/5/1984 on AhmedabadPorbandar Highway. Arvound 1100 p m he reached near the bridge over Khokhaddadi. According to him, at that place in the middle of the road, a truck bearing registration No. GTG 2017 was parked without any signal. There were no reflectors nor any stone or barricade put encircling the truck. It is also averred that there was noone to even caution him about the parking of the truck on the road. It is further stated that there was all of a sudden a puncture in the left wheel and his vehicle was dragged on the left side of the road. Further he was dazed by the lights of the oncoming vehicles. As a result of the same, he could not see ahead of him and he rammed into the stationary truck. It is the say of the claimant that he received serious injuries which resulted into permanent partial disablement. He, therefore, filed claim initially for Rs.50,000/ but subsequently enhanced it to Rs.75,000/.

(3.) I have heard Mr. Shalin Mehta, learned advocate for the appellant, Mr. HH Patel, learned advocate for respondents no. 1, 2, 3, 5 and 6 and Mr. Rajni H Mehta, learned advocate for respondent no. 4. Mr. Shalin Mehta has submitted that the conclusion of the Tribunal on the issue of negligence is not proper. He has drawn my attention to the material on record to submit that the claimant himself was negligent and, therefore, no compensation can be awarded to him. He has further submitted that when the owner of the vehicle is absolved of his liability to satisfy the award, the insurance company cannot be asked to satisfy the award. He has lastly submitted that the claimant has approached the Claims Tribunal under the provisions of the Act, but to recover the amount claimed in the proceedings, he has to approach the forum provided under the Workmen's Compensation Act, namely the Commissioner. In support of his submission, he has placed reliance on the decision rendered by the Division Bench of this Court in the case of United India Insurance Co. Ltd. V/s. Jagatsinh Valsinh and others reported in 1986 G.L.H. At page 573.