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Judgment
Feeling aggrieved and dissatisfied with the common judgment and award dated 7th October 2010 passed by the Motor Accident Claims Tribunal,
Navsari in Motor Accident Claim Petition No. 98 of 2006 and 108 of 2006, the appellant-Insurance Company has preferred these Appeals under
Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act†for the sake of brevity).
As both the claim petitions arise out of the same accident and as both the claim petitions were disposed of by a common judgment and award, and
the same set of evidence is available on record, therefore, both these appeals are heard together and disposed of by this common judgment and order.
As far as First Appeal No. 4602 of 2010 is concerned, the same arises out of MACP No. 98 of 2006 and First Appeal No. 4603 of 2010 arises out
of MACP No. 108 of 2006.
Following facts emerge from the record of the appeals :-4.1 That, an accident occurred on 5th April 2006 between Hero Honda motorcycle, bearing
registration No. GJ-15-J-0421 and tempo truck, bearing registration No. GJ-15-U-5421. As per the record, deceased Rasidbhai was driving his
motorcycle and Kalumiya was the pillion rider. It is the case of the original claimants that the motorcycle was being driven by deceased Rasidbhai on
its correct side and in moderate speed and when they were passing through Paati village, a tempo truck which was being driven in excessive speed, in
rash and negligent manner, coming from Gandevi side, dashed with the motorcycle bike on the wrong side and because of which, deceased received
fatal injuries.
4.2 Suffice to note that it is the case of original claimants that both the deceased were engaged in the business of Automobile. Deceased Rasidbhai
was 37 years old and Kalumiya was 58 years old. Evidence as regard their income was adduced in the form of oral deposition in both the claim
petitions. The claimants of MACP No. 98 of 2006 claimed compensation of Rs. 21,00,000/- and the claimants of MACP No. 108 of 2006 claimed
compensation of Rs. 10,00,000/-.
4.3 That, the Tribunal determined income of the deceased in both the claim petitions at Rs. 5,000/- per month and by giving appropriate multiplier as
per the age of the deceased, partly allowed both the claim petitions and in MACP No. 98 of 2006 awarded total compensation of Rs. 8,03,000/- and
MACP No. 108 of 2006, awarded total compensation of Rs. 4,19,900/- to the respective claimants with interest @ 9% per annum from the date of
filing of claim petitions till its realization. Being aggrieved by the said common award, the present Appeals are preferred by the Insurance Company.
Heard learned advocate Mr. Sunil B. Parikh for the appellants and learned advocate Mr. Darshit R. Brahmbhatt for Mr. A. N. Kadri for the
original claimants in both the appeals.
Mr. Sunil B. Parikh, learned advocate for the appellant-Insurance Company has contended that as far as First Appeal No. 4602/2010 is concerned,
the Tribunal has wrongly appreciated that the accident has taken place due to rash driving of Tempo truck and has made certain observations, which
are contrary to the record. Relying upon panchnama of the place of occurrence (Exh. 54), Mr. Parikh has contended that the learned Tribunal has
wrongly come to a conclusion that only the motorcycle got damaged. Mr. Parikh submitted that even though Tempo truck was coming from wrong
side, there was no head on collision. Mr. Parikh further contended that the learned Tribunal has wrongly come to a conclusion that the driver of tempo
truck is solely negligent. Mr. Parikh contended that as there was head on collision, drivers of both the vehicles ie., Tempo truck as well as Motorcycle
were equally negligent. Mr. Parikh candidly submitted that as far as quantum is concerned, in view of judgment of the Apex Court in case of National
Insurance Company Limited Vs. Pranay Sethi & Ors., reported in (2017) 16 SCC 680, the appellant does not intend to contend anything further on the
quantum aspect. Mr. Parikh, therefore, submitted that on the aspect of negligency, the Tribunal has committed an error and misread the evidence in
form of panchnama of the place of occurrence Exh. 54. It was submitted by Mr. Parikh that the observations made by learned Tribunal in respect of
manner of the accident are de hors evidence on record, and therefore, both the appeals be allowed and the impugned common judgment and award be
modified. It was contended that both the drivers be equally held liable for the accident, and accordingly, equally negligent. Mr. Parikh has candidly
submitted that as far as Claim Petition No. 108 of 2006 is concerned from which First Appeal No. 4603/2010 arises, in view of the findings arrived at
by the Tribunal on income, in view of the judgment of the Apex Court in the case of Pranay Sethi (Supra), the appellants do not indent to raise further
contention even on quantum. On the aforesaid ground, Mr. Parikh, therefore, submitted that the First Appeal No. 4603 of 2010 be allowed, as prayed
for.
Per contra, learned advocate Mr. Darshit R. Brahmbhatt for Mr. A. N. Kadri, learned advocate for the respondents No.1.1, 1.2 and 1.5-original
claimants has supported the impugned award. Mr. Brahmbhatt contended that learned Tribunal has rightly observed that it was not head on collision,
and therefore, deceased Rasidbhai, as a driver of Hero Honda Motorcycle cannot be made liable. It was contended by Mr. Brahmbhatt that the
Tribunal has committed no error in coming to a conclusion that the driver of Tempo truck was solely negligent for the accident. Mr. Brahmbhatt also
submitted that the learned Tribunal has rightly appreciated the evidence on record, more particularly, panchnama of the scene of occurrence and has
rightly held driver of Tempo-truck solely responsible for the accident, as the appeal being meritless, it deserves to be dismissed.
No other or further contentions and/or submissions are made by the learned advocates appearing for the respective parties.
Upon considering the submissions made and upon perusing the original record and proceedings, as far as First Appeal No. 4603/2010 is concerned,
the fact remains that the original claimants have not challenged the impugned award. It is found that the Tribunal has not given benefit of prospective
income as well as benefit under conventional heads and is also not as per the judgment of Apex Court in case of Pranay Sethi (Supra), and therefore,
even if the impugned award is examined qua original Claim Petition No. 108/2006, being First Appeal No. 4603 of 2010, we find that the Tribunal has
awarded just and appropriate compensation and the same does not deserve to be altered or modified in this appeal and thus, First Appeal No. 4603 of
2010 is liable to be dismissed, and is hereby dismissed.
So far as First Appeal No. 4602 of 2010 is concerned, it would be proper to note that though the Tribunal has come to a conclusion that the driver
of Tempo truck is solely liable for the accident and was solely negligent, the fact remains that in the panchnama of the scene of occurrence, there is a
clear cut mentioned that the front portion of Motorcycle was badly damaged. Panchnama also shows that the bonnet and front side of Tempo truck
was damaged due to the accident. Upon re-appreciation of the evidence of panchnama, it is established that there was a head on collision. However,
at this stage, it is also noteworthy to state that panchnama mentions Tempo Truck being driven on the wrong side. The Tribunal has also relied upon
photographs (Exh. 22 to 26). However, as observed hereinabove, Panchnama clearly describes that Tempo truck was damaged from the front side,
and hence, the Tribunal has committed an obvious error in considering the evidence of Panchnama Exh. 54. The Tribunal has also wrongly relied upon
photographs, as the photographs are showing the position after the accident. In the Panchnama it is clearly mentioned that Tempo truck was damaged
in front; as observed hereinabove. We, therefore, are of the opinion that the Tribunal has erred in coming to a conclusion that the driver of Tempo
truck was solely negligent.
Upon re-appreciation of the evidence on record and considering the fact that Tempo truck was being driven on the wrong side, however, Tempo
truck is also damaged, though we come to a conclusion that the drivers of both the vehicles ie., Hero Honda Motorcycle and Tempo truck, both were
negligent for the accident and also considering the fact that the Insurance Company has not examined the driver of Tempo truck, we come to the
conclusion that the driver of Tempo truck was more negligent to the accident, ie., to the extent of 80% and deceased Rasidbhai, being a driver of Hero
Honda Motorcycle was negligent to the extent of 20% . Rest of the impugned award passed in MACP No. 98 of 2006 stands unaltered.
Thus, First Appeal No. 4602 of 2010 is hereby partly allowed and the impugned award passed in MACP No. 98 of 2006 stands modified to the
aforesaid extent. The original claimants of MACP No. 98 of 2006 would be entitled to 80% of the amount awarded by the Tribunal and the Tribunal
shall refund the said amount to the appellant. There shall be no order as to the costs.
Registry is directed to send back record and proceedings to the Tribunal forthwith.