The Tribunal's finding of rashness and negligence on the part of the Tata tipper truck driver did not warrant interference. The compensation amount was modified based on the law laid down in National Insurance Company Ltd. V/s. Pranay Sethi & Ors., and interest was made payable from 09.04.2013 instead of 01.10.2011.

JUDGMENT

1. Heard learned Counsel for the parties.

2. The Appellant - Insurance Company, the insurer of Tata tipper truck bearing registration no.GA-04-T-1769 challenges the judgment and award dated 30.10.2015 in Claim Petition No.56/2011 made by the Motor Accident Claims Tribunal, North Goa, Mapusa (Tribunal).

3. By the impugned award, the truck driver, the truck owner and the Appellant-Insurance Company have been directed to pay additional compensation of ?31,83,000/- along with interest at the rate of 9% per annum from the date of the claim petition to the claimants on account of the death of Kalpana Tulshidas Kerkar in a vehicular accident that occurred on 14.02.2011. Kalpana was travelling in a minibus bearing registration no.GA-01-U-2603. There was a head-on collision between the minibus and the tipper truck. The accident, among other things, resulted in the death of Kalpana Kerkar and the bus driver Doulat Rane.

4. Mr Kakodkar, learned Counsel for the Appellant, submits that the evidence on record overwhelmingly points to the negligence of Doulat Rane, the bus driver. He submits that even FIR was filed against said Rane, but no criminal prosecution could be launched because of his demise. He points out the evidence on record, which establishes how the tipper truck was on its right side and its driver was not rash or negligent. Based on all this, Mr Kakodkar submits that the finding of rashness and negligence on the part of the tipper truck driver warrants interference.

5. Mr Kakodkar submits that no adverse inference should have been drawn for the alleged failure to examine the tipper truck driver. He points out that at least two summons were issued for his examination, but since the address furnished was insufficient, the summons could not be served. Furthermore, he submitted that even the Tata tipper truck owner did not cooperate. He proposes that upon consideration of these factors, no adverse inference should have been drawn against the Appellant.

6. Mr Kakodkar submits that a composite negligence case was made between the Tata tipper truck driver and the minibus driver Doulat Rane. Based on this, without prejudice, respondent no.5 - Insurance Company had even settled two awards in the Lok Adalat by agreeing to pay 50% of the compensation. Mr Kakodkar, in the alternate, submits that the same formula be applied in the present case as well. He relies on Khenyei V/s. New India Assurance co. Ltd. & Ors., 2015 9 SCC 273.

7. Mr Kakodkar submits that the compensation awarded is excessive and does not represent just compensation. He pointed out that the original Claim Petition only alleged negligence against the bus driver. He submitted that by an amendment incorporated on 09.04.2013, the tipper truck owner, driver and Appellant were impleaded. Therefore, there was no justification for awarding interest from the date of the claim petition.

8. For all the above reasons, Mr Kakodkar submits that the impugned award warrants interference.

9. Mr Rui Gomes Pereira, learned Counsel for the claimants, submits that the findings recorded by the Tribunal may not be disturbed. He presents that even the compensation determined is just and proper. In the alternate, he submits that the Appellant be directed to pay the entire compensation amount, and after that, the Appellant may pursue its claims against respondents nos.3,4 & 5.

10. At the outset, Mr S. Bharne, learned Counsel for respondent no.5, points out that the widow and minor children of Doulat Rane, the bus driver, had instituted Claim Petition No.56/2011. There, based on the evidence of the two eyewitnesses, who have deposed in the present matter, the Tribunal held that the Tata tipper truck driver drove the truck rashly and negligently and, therefore, was responsible for the accident. He points out that this award dated 30.10.2015 was produced in this matter. He points out that the Appellant- Insurance Company has not challenged this award and thereby accepted the finding of negligence re