The judgment establishes the principle that contributory negligence in head-on collisions should be determined based on the specific facts and evidence of each case, and there is no absolute rule that both drivers are to be held contributory negligent to the extent of 50% in all cases.

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Auxi.), at Anjar, District Kutch (hereinafter referred to as "Tribunal") in Motor Accident Claim Petition No.44/2015 insofar as holding the original opponent No.1-driver of the Eicher Matador No. GJ03Y8206 sole negligent for the accident, original opponent No.3-insurer of the Eicher Matador involved in the accident-United India Insurance Co. Ltd. has preferred the present First Appeal.

2. At the outset it is required to be noted that the impugned judgment and award passed by the learned Tribunal is assailed insofar as holding the original opponent No.1-driver of Eicher Matador sole negligent for the accident.

3. Shri Maulik Shelat, learned advocate appearing on behalf of the appellant-insurance company has vehemently submitted that in the facts and circumstances of the case more particularly from the panchnama produced at Exh.34, it has come on record that there was a head on collision between Alto Car No.GJ12P4511 in which the original injured claimant was traveling and Eicher Matadar No.GJ03Y8206 and therefore, the driver of both the vehicles are required to be held contributory negligent to the extent of 50%. In support of his above submission, Shri Shelat, learned advocate appearing on behalf of the appellant-insurance company has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Bijoy Kumar Dugar v. Bidya Dhar Dutta & Others reported in (2006)3 SCC 242. Relying upon the aforesaid decision of the Hon'ble Supreme Court more particularly para 12 of the said decision, Shri Shelat, learned advocate appearing on behalf of the appellant has submitted that in all cases where there is a head on collision, driver of both the vehicles involved in the accident are required to be held contributory negligent to the extent of 50% and more particularly when both the vehicles are found on the middle of the road.

No other submissions have been made.

4. Shri Hiren Modi, learned advocate appearing on behalf of the respondent-original injured claimant has submitted that in the facts and circumstances of the case more particularly considering the deposition of the injured claimant who was traveling in the Alto car and who was also an eyewitness to the accident and considering the fact that after the investigation the driver of Eicher Matador has been charge-sheeted and considering the fact that after the accident the driver of the Eicher Matador ran away and in fact thereafter also he did not step into the witness box and therefore, adverse inference was required to be drawn against him, the learned Tribunal has rightly held the driver of the Eicher Matador sole negligent for the accident.

4.1. Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Bijoy Kumar Dugar (supra) by the learned advocate appearing on behalf of the appellant is concerned, it is submitted by Shri Modi, learned advocate appearing on behalf of the original injured claimant that on facts the said decision shall not be applicable to the facts of the case on hand. It is submitted that in the case before the Hon'ble Supreme Court, it was found that despite the fact that the driver of the car saw that the vehicle coming from the opposite side was coming in a zigzag manner and at abnormal speed, no further due care was taken by him to avoid head on collision. It is submitted that considering the aforesaid facts the Hon'ble Supreme Court observed and held driver of both the vehicles involved in the accident contributory negligent to the extent of 50%. It is submitted that in the aforesaid decision there is no actual proposition of law laid down by the Hon'ble Supreme Court that in each and every case whenever there is a head on collision between two vehicles, driver of both the vehicles are required to be held contributory negligent to the extent of 50%. It i