RASILABEN DILIPBHAI SANEPARA Vs. BHAGABHAI RAMBHAI BHARVAD

JUDGEMENT

(1.) Heard learned advocate Mr. T. L. Sheth for the appellants and learned advocate Mr. H. G. Mazmudar for respondent No.3. Respondent Nos. 1 and 2 are deleted since appeal is mainly on the issue of quantum of compensation awarded by the tribunal in favour of the appellants. Perused the record.

(2.) Appellants herein are original claimants before the Motor Accident Claim Tribunal, Rajkot in Motor Accident Claim Petition No.246 of 2001. Such petition was preferred by present appellants claiming Rs.10,00,000/- as compensation for the accidental death of one Dilipbhai Shamjibhai against driver, owner and insurance company of the vehilce, which was involved in the accident. Since none of the opponents, including insurance company has challenged such impugned judgment and award dated 31.03.2016 in such Motor Accident Claim petition No.246 of 2001 by the Motor Accident Claim Tribunal of Gondal, there is reason to believe that there is no dispute regarding nature of incident and its result, so also liability of the insurance company to pay compnesation to the claimants / appellants by indeminfying the owner of the vehilce. Therefore, those information are not much material to be reproduced herein. However, when claimant has challenged the determination and conclusion by the tribunal in impugned award regarding contributory negligence of the deceased victim, one has to scrutinize the entire award. The appellant has also challenged the quatum of compensation awarded, contending that tribunal has failed to appreciate the facts, circumstances and evidence in awarding just and reasonable compensation.

(3.) Claimants are widow, minor children and parents of the victim. It is undisputed fact that on 22.02.2001, victim Dilipbhai was driving his vaspa scooter No. GUD 8259 on Gondal Vasavad road. It is contended by the claimants that he was driving his vehicle in moderate speed and on right side of the road, but driver of Motorcycle GJU 1918 was driving his vehicle in rash and negligent manner without observing traffic rules and dashed with the victim, which resulted into serious injuries, for which victim succumbed. To determine the negligence of respective driver of both the vehicles one has to rely upon the FIR and panchnama of the vehicle because claimants being parents and widow, they are certainly not aware about natuer of accidnet. The FIR produced at exhibit 52, which is lodged by Rameshbhai Koli, who was pillion rider on such scooter. In his complaint to the Rajkot City Police Station, he has has stated that when they were going on their vaspa scooter towards Vasavad, opponent No.1 driver of the motorcycle had came in full speel on wrong side and dashed with their scooter, which resulted into grivious injuries to the victim. The panchnama of the place of incident at Exhibit 53 confirms that motorcycle has been damaged on its left side so also front side as its front light was broken, its handle was damaged, spokes were also damaged and there was blood marks on the front of the motorcycle, so also there was damage on the scooter driben by the victim. The place where both the vehicles were dashed was 12 feet wide road with 6 feet kachha road on both the sides and, therefore, there is reason to believe that though road was 12 feet wide, at least one of the vehicle has travelled on wrong side. The factual details narrated in the FIR and panchnama confirms that victim was driving his vehicle on correct side and opponent being motorcycle driver has not stepped into witness box to say that he was not negligent, there is reason to believe that opponent was sole negligent in the accident and there is no contribution by the victim in the accident. It is pertinent to note that panchnama specifically confirms that both the vehicles were laying on the north edge of the road, whereas insurance company has argued that accident was taken place in middle of the road and, therefore, both the drivers are equally liable. Whereas the tribunal has simply assigned a single reason that FIR and Panchnama shows that deceased was somehow negligent and held him 20% negligent without discussing the factual details of the FIR and Panchnama though tribunal has recorded that opponent has not examined the driver of the motorcycle to rebut the evidence of his negligence.