SURENDRABHAI CHUNILAL SHETH Vs. ORIENTAL INSURANCE CO LTD

JUDGEMENT

(1.) THESE appeals arise out of a common judgment and award rendered by Motor Accident Claims Tribunal, (Ahmedabad) on 27-7-2000 in motor Accident Claim Petition Nos. 3, 4, 5 and 6 of 1996. These petitions arose out of an accident that occurred on 21-10-1995 at about 8-00 p. m. , on national Highway No. 8 near Sandhana. Maruti van No. GJ-1-4073 going from ahmedabad to Baroda side and truck No. PBM-7687 going from Baroda to ahmedabad side collided with each other which resulted in death of one surendrabhai Sheth and his wife Kanaklataben travelling in Maruti van. Maruti van was being driven by Malaykumar suffered injuries. His nephew Purva also suffered injuries who was also travelling in the van. 1. 1. M. A. C. P. No. 6 of 1996 was preferred for death of Surendrabhai, m. A. C. P. No. 5 of 1996 was preferred for death of Kanaklataben, M. A. C. P. No. 4 of 1996 was preferred for injuries suffered by Malaykumar, M. A. C. P. No. 3 of 1996 was preferred for injuries suffered by Purva through his natural guardian Shashankbhai. 1. 2. The claimants preferred the claim petitions against the driver, owner and insurer of the truck, but did not join the driver, owner and insurer of the maruti van as party opponents before the Tribunal. The driver and owner of the truck preferred not to file any written statement or to lead any evidence. The Insurance Company filed the written statement more or less in form of denials with a specific plea that the truck was not involved in the accident at all and that the accident must be appropriately proved. Without any other pleading on occurrence, the Insurance Company also took an alternative plea that the driver of the van also contributed to the cause of the accident.

(2.) CONSIDERING the evidence led before it, the Tribunal came to a conclusion that drivers of both the vehicles involved in the accident were equally negligent and contributed equally to the cause of the accident. The Tribunal, ultimately, awarded compensation of Rs. 10,50,500/- for death of Surendrabhai, Rs. 1,00,000/- for death of Kanaklataben, Rs. 1,00,000/- for injuries suffered by malaykumar and Rs. 50,000/- for the injuries suffered by Purva with proportionate costs and interest @ 9% p. a. , from the date of application till satisfaction of the award. The Tribunal, however, observed in respect of all claimants that the claimants would be entitled to recover from and the opponents would be liable to pay only 50% of the compensation awarded to the claimants as the claimants have not joined the driver, owner and insurer of the Maruti van as party opponents.

(3.) THE original claimants have preferred these appeals mainly on the ground that the Tribunal has erred in holding that both the drivers were equally negligent and contributed equally towards the cause of accident. First Appeal Nos. 4940, 4935, 4997 of 2001 are preferred on an additional ground of challenging the finding of the Tribunal that the claimants are entitled to recover from and opponents are liable to pay only 50% of the compensation awarded as the driver of the Maruti van was responsible to the extent of 50% and he has not been joined as a party opponent in the claims. This challenge is on the ground that the claims other than the one by Malaykumar for injury are for death or injury to passengers of van and it is a case of composite negligence of both the drivers qua these claimants and their liability would be joint and several, and it is for the claimants to decide whom to recover the compensation from.