1. The aforementioned both the appeals have arisen out of common judgment and award dated 12.01.1998 passed in Motor Accident Claim Petition Nos. 39 of 1990 and 40 of 1990 by learned Motor Accident Claims Tribunal (Aux.-II), Junagadh.

2. The appellant New India Assurance Company Limited, by way of preferring the present appeals, inter alia, contended that learned Tribunal failed to appreciate the oral as well as documentary evidence and wrongly fastened the liability to the extent of 30% upon the Insurance Company. It was contended that oral as well as documentary evidence produced and proved at Exh.64 and Exh.65 are clearly indicative of the fact that the driver of Rajdoot Motorcycle No. GRJ 4656 was on its extreme left side and the driver of the offending truck was on wrong side and due to sole negligence on part of the driver of the truck, the incident occurred and consequently therefore, no contributory negligence could have been assigned on part of the driver of the motorcycle. It was further contended that since the policy in question was a third party policy, the sole liability could have been fastened upon the Insurance Company as there was no coverage of insurance so far as pillion rider as well as driver both are concerned.

3. By way of preferring the present appeals, since the Insurance Company has questioned the finding as regards the negligence decided by learned Tribunal, this Court is called upon to decide as to whether the finding recorded by learned Tribunal is in accordance with the evidence available on record or not.

4. Learned advocate Mr. N. A. Acharya for learned advocate Ms. Lilu Bhaya for the appellant-Insurance Company argued that the panchnama, FIR and oral evidence led by the claimants are clearly indicative of the fact that the driver of the truck went on wrong side, due to which, the incident in question occurred. Similarly, learned advocate Mr. H. G. Mazmudar argued that since learned Tribunal fastened the liability taking into consideration the size of the vehicle, this Court may not disturb the finding as regards the negligence. The FIR produced at Exh.60 came to be lodged by one Sunil Mochi, who inter alia, stated that he had his own shop nearby Bhidiya Talala and while he was at his shop, at that time at about 10.00 to 10.15 hours in the morning, in front of his shop, while the motorcycle was proceeding on its left side, the driver of the truck came in a very speed and took the offending truck on its wrong side and dashed with the motorcycle and committed the incident, due to which, the motorcycle was thrown away from the road. The numbers of both the vehicles as well as names of the drivers were also mentioned in the FIR. The panchnama of scene of incident came to be drawn soon after the incident clearly indicates that the place of incident was shown by the complainant upon Veraval Somnath Road in front of Jivanjyot clinic and the place of incident is shown on the southern side upon road which runs from the east to west. The motorcycle was found on its extreme left side. At the place of incident, the width of the road is mentioned to be 26ft. The offending truck was found facing towards Veraval. The rear portions of the wheels of the truck were found with blood. Indisputably, in order to prove the point of negligence, none of the parties to the proceedings had examined any eyewitness, but the factual scenario emerging out from the FIR and the panchnama is clearly making out that when the deceased was proceeding upon motorcycle nearby Jivanjyot clinic upon Veraval Somnath Road, at that time, the driver of the offending truck came from opposite direction in a very speed and took the said truck into a wrong side and dashed with the motorcycle and ran over upon both the persons who were riding over the said motorcycle and committed the incident. The FIR was lodged by one independent person who had his shop in front of place of incident and he has also stated the aforesaid fact in the FIR