1. Initially, this First Appeal was filed by one Vasabhai Rambhai against judgment and award passed by the Motor Accident Claims Tribunal at Junagadh in Claims Petition No. 29 of 1983. During the pendency of this appeal, the appellant-original claimant died and his heirs are brought on record. Originally, the Claims Petition was filed for Rs.3,18,770/- out of which, the Tribunal awarded Rs.42,700/- with interest @ 6% per annum from the date of application till realization with proportionate costs.

1.1. The Tribunal was pleased to hold the claimant - Vasabhai Rambhai negligent to the extent of 60% and that is why, the amount, which was ascertained by way of economic loss to the claimant, was reduced and it was held that he was entitled to Rs.42,000/- only. That is how this First Appeal came to be filed for remaining amount of the amount claimed in the Motor Accident Claims Petition (Rs.3,18,770/- - Rs.42,000/- = Rs.2,76,770/-).

2. Learned advocate Mr. Shah for the appellant vehemently submitted that the Tribunal has erred in ascertaining the amount of economic loss and after having erred on the point of ascertaining the amount, it further erred in holding the claimant negligent to the extent of 60% and then reducing that amount.

2.1. The learned advocate for the appellant first invited attention of the Court to Para 2 of the judgment and award, wherein, the accident is described. For ready perusal, the same is reproduced:

“...The short facts of the case of the applicant in this Claims Petition are that on 2/8/1982, the applicant was proceeding on his motorcycle for going to Badalpara from Vadodara Zala village driving the said motorcycle at a normal speed when from the opposite direction came a public carrier (Truck) no. GTX 5336 approaching at a very high speed being driven rashly and negligently by opponent no. 1. However, as alleged, despite the signaling with lights and even though the motorcyclist viz. The applicant retarded the speed of the motorcycle to a dead slow, the public carrier knocked down the motorcycle throwing off the applicant and the pillion rider Deva Samat rendering the applicant unconscious. The truck driver then went away leaving the truck at the place of accident. As a result of this accident the applicant sustained fractures of left hand and both legs and also he sustained as injury on his right eye-brow. Thus, for these injuries he had been hospitalized and had undergone expenses of a large sum as narrated in evidence at exh. 262...”

2.2. The learned advocate for the appellant then invited attention of the Court to various paragraphs wherein, the Court has considered the Issue No. 1, which is as under:

“Whether the petitioner proves that he sustained injuries in a vehicular accident due to rash and/or negligent driving of the vehicle i.e. public carrier - GTX 5336 in question by the driver-opponent no. 1?”

2.3. The learned advocate for the appellant invited attention of the Court to Paras 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28.

2.4. The Tribunal, in later part of Para 27, records as under:

“Be as it may, but the fact remains that the delivery of motorcycle must have taken place on 4/5/82, the day on which its insurance begins. Under the circumstances and looking to the facts, it is my conclusion that the motorcycle driver Vasa Ram, is partly proved rash and negligent to the extent of 60% in the circumstances of this case. Therefore the rashness and negligence which can be attributed to opponent no. 1, the driver of the truck, namely Mohmad Umar, comes to 40%. Accordingly, for Issue no. 1 in M.A.C.P. No. 29/83 may conclusion would be in the affirmative to the extent of 40%...”

3. It will be appropriate to consider as to what circumstances the Tribunal has taken into consideration for recording the aforesaid finding before this Court deals with the submissions made by the learned advocate for the appellant. It is the case of the claimant-appellant before the Tribunal that on a road, which is north-sou