S G SHAH, J.

1. Heard learned advocate Ms. Dharitri Pancholi for the appellants and learned advocate Mr. Ajay R. Mehta for respondent No.3. Notice upon respondent No.1 has been dispensed with whereas respondent No. 2 though served, has remained absent. Perused the record as well as Record and Proceedings.

2. Appellants herein are original claimants in Motor Accident Claim Petition No.234 of 1993 before the Motor Accident Claims Tribunal of Vadodara. Such petition is preferred under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.8,00,000/- for the accidental death of one Kalidas @ Kantilal Somabhai Parmar, who met with an accident on 18.10.1992. On that day, when he was driving his Scooter No. GBF 7253, one Matador No. GJ-06-T-6573 dashed with him. It is the case of the claimants before the Tribunal that deceased was aged about 28 years and was serving as a mechanic in Indian Petrochemical Corporation Limited (IPCL) and earning Rs.4500/- per month. The claim petition was initially filed against driver of the Matador only, but as per the order below Exh. 7, the name of the owner and insurer was added in the year 2000, though claim petition was filed in the year 1993.

3. After allowing both the parties to adduce their respective evidence and on consideration of evidence on record, by impugned judgment and award dated 04.01.2016, the Motor Accident Claims Tribunal (Auxiliary), Vadodara has awarded total amount of Rs.8,00,000/- as compensation to be paid jointly and severalty by opponent Nos. 1 and 2 being driver and owner of the Matador in question. However, insurance company has been exonerated from its liability to pay compensation for the reasons recorded in impugned judgment.

4. Being aggrieved by such exoneration of the insurance company to pay the amount of compensation by indemnifying the owner of the vehicle, the claimants have preferred this appeal. When claim petition was for an amount of Rs.8,00,000/- and when the Tribunal has awarded total amount of Rs.8,00,000/- after considering that claimants are entitled to Rs.8,15,120/-. Practically appeal is mainly on the issue of liability of insurance company, when insurance company has been exonerated. However, when Tribunal has considered 20% negligence of the deceased - victim also, the appellant has also challenged such determination submitting that Tribunal ought not to have considered 20% negligence of the deceased, who was driving scooter and that Matador driver i.e. opponent No.1 ought to have been held solely negligent.

5. I have heard both the sides at length. Perused all relevant documents as well as Record and Proceedings.

5.1 The sum and substance of the submission by the appellants are summarized as under;

The insurance policy is produced on record which confirms that though it is for the period from 14.04.1993 to 13.04.1994, since 15% no claim bonus is offered in premium, it is to be believed that it is renewal policy, there must be an insurance policy between 14.04.1993 to 13.04.1994, so as to cover the liability of the insurance company to indemnify the owner for the accident took place on 08.10.1992.

The deposition of the witness by the insurance company namely Balkrishna P. Navre at Exh.32 does not confirm that above policy is not renewal policy of any previous policy because insurance company has failed to produce relevant documents, and circular produced by the witness at Exh.48 on the contrary confirms that general ledger is to be retained for all time to come.

Insurance company has failed to produce such general ledger, so as to confirm that they have not received the premium or that this is not a renewal policy but a fresh policy.

5.2 In support of above three points learned advocate for the appellant has read out the entire deposition at Exh.38 and referred the policy, which is produced with an application for witness summons at Exh.40. Thereby, the policy has never been proved on record by appropriate evidence. Therefore, though