A division judge bench of the Justice A.J. Desai and Mauna M. Bhatt of Gujarat HC partly allowed the appeal against the judgment and award dated 30.8.2010, passed by the Motor Accident Claims Tribunal (Main), Bharuch in MACP No.386 of 2008, wherein the Tribunal awarded total compensation of Rs.25,31,360/- and wrongly held the deceased liable for accident for contributory negligence to the extent of 20%.
Facts:
On 17.4.2008, at around 8.00 a.m., the deceased was going on his motorcycle to reach at Ankleshwar Railway Station to catch train to attend to his job. When he reached near Jayaben Modi Hospital, at that time one Truck No. RJ-04-GA-0637 driven by original opponent No.1, came in full speed in rash and negligent manner and collided with motorcycle resulted into accident. he legal heirs of the deceased filed Claim Petition under Section 166 of the Act seeking compensation of Rs. 40 Lacs. The claimants ground was that the accident occurred on account of sole negligence on part of the driver of the Truck. The Tribunal after hearing the parties and upon appreciation of evidence on record held driver of Truck, as negligent to the extent of 80% and driver of, negligent to the extent of 20% and awarded total compensation of Rs.31,64,200/- and after deducting 20% contributory negligence of driver of Motor Cycle (the deceased), awarded Rs.25,31,360/- to the appellants – original claimants. 1/3rd was deducted towards personal expenses to arrive at dependency loss. The claimants aggrieved by the negligence as well as quantum of compensation awarded filed a present appeal. The appellants claimed that the Tribunal held deceased negligent to the extent of 20%, purely on presumption that the deceased might be in hurry to reach at the railway station so as to catch train as he was commuting and while overtaking there was a possibility that the accident took place. While in FIR it was clear that truck came on the wrong side of the road and dashed with motorcycle from front.
Observations of the Court:
The court noticed that in the FIR lodged by cleaner of truck, it is stated that the driver of the truck lost control over the steering and it dashed with the motorcycle. Further from the record it is noticed that the driver of the truck appeared before the Tribunal and filed its written statement, however, he chose not to step into the witness box. In our opinion, this supports the case of the appellants that no contrary evidence in favour of truck driver is on record. Further the cleaner of the truck who lodged the FIR was eye witness to the accident, who stated that the accident occurred as the driver of the truck lost control over the steering. Therefore, the tribunal is in error in holding that the driver of the motorcycle (the deceased) was negligent to the extent of 20% for occurrence of the accident. The observation by the tribunal that, the driver of the motorcycle was in hurry to reach to the railway station to catch a train, is not supported by any evidence. Therefore, the driver of Truck No. RJ 04 GA 0637, was sole negligent for the accident occurred on 30.8.2010 and to that extent the judgement and award of the tribunal is erroneous.
Decision:
The appeal of the original claimants was partly allowed and truck driver was solely negligent for the accident occurred. The court awarded the total compensation of Rs.37,61,600/-. And directed the respondent – Insurance Company to deposit the balance amount of compensation of Rs.12,30,240/- (Rs.37,61,600 – Rs.25,31,360) with 6% interest p.a. and proportionate costs from the date of filing of the claim petition till its realization with the Tribunal within a period of eight weeks from the receipt of the order.
Case: Anita Deepak Kumar Singh and 4 others v. Jetharam Dirdhram and 2 others
Citation: R/FIRST APPEAL NO. 1845 of 2011
Coram: Justice A.J. Desai and Mauna M. Bhatt
Dated: 18.10.2022
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