JUDGMENT :

H.K. Rathod, J.

Heard learned advocate Mr. H.M. Thakker for appellant-Insurance Co.

2. In present appeals, appellant-Insurance Co. has challenged common award passed by MAC Tribunal (Main), Rajkot, Exh. 154, decided on 16.1.2009, wherein claims Tribunal has awarded compensation in favour of respondents claimants.

3. Learned advocate Mr. Thakker has raised only one contention before this Court about finding given by claims Tribunal in respect to negligence of both drivers. The accident occurred on 16.1.1994 between Metador No. GJO-7752 and Tanker No. GTP 6926. Present appellant is the Insurance Co. of Tanker and Oriental Insurance Co. Ltd. is the Insurance Co. of Metador.

4. It is necessary to note that respondents are-D.P. Sheth-owner of Metador No. GJO 7752, Oriental Insurance Co. is the Insurance Co. of Metador, Kanjibhai Jivabhai, driver of Tanker No. GTP 6926, Dwarkadhish Transport owner of tanker, National Insurance Co. Ltd. is the Insurance Co. of Tanker. The claimants have filed separate applications claiming compensation from all respondents, those who are joint tortfeasor.

5. Learned advocate Mr. Thakker submitted that Issue No. 1 which has been decided by claims Tribunal erroneously, contrary to record and finding given by claims Tribunal that driver of the tanker was of 40% negligent, is also contrary to Panchnama and evidence on record. He read over before this Court Panchnama dated 16.1.1994 and pointed out that considering Panchnama as it is, driver of Metador was solely negligent and driver of tanker was not at all negligent. He relied upon a decision of claim Tribunal in respect to very same accident delivered by claims Tribunal, Ahmedabad in MACP No. 1044 of 1999 Exh. 51 wherein claims Tribunal, Ahmedabad come to conclusion while deciding issue No. 1 that driver of matador is solely negligent and responsible for accident occurred on 16.1.1994. Relevant discussion of Claims Tribunal, Ahmedabad as referred in above claim petition is in Para. 6, which is quoted as under :

"6. On the point of negligent, the claimant has filed affidavit at Exh.30 in which he has reiterated the facts as alleged in the claim petition Exh. 1. During the cross, it is admitted that the Tanker in which, he was travelling is running on its left side and at that time, matador came totally on wrong side and in that way due to negligent driving of the matador driver, the accident took place. The claimant has produced copy of the F.I.R. and panchnama Report at Exh. 43 & 44. On perusal of the FIR, it transpires that it was lodged by Kanjibhai, the driver of Tanker No. GTP No. 6926, in which, it is stated that when he was travelling over said tanker in capacity as driver, and when he reached near Bhogavo Bridge, at that time, from the opposite side one Matador was coming with full speed and the driver of the Matador has lost the control over his vehicle and dashed the front portion of the matador to the Tanker and in that way, the accident took place. On perusal of the Panchnama Report, it transpires that the road is of 40 ft. width and the Tanker is lying on its left side and the matador is dashed on the driver side of the tanker and which means that the matador had left its left side and came towards the tanker and this position of the panchnamka report clearly suggests that the driver of the Matador was negligent in driving and because of his rash and excessive speed as he lost control over his vehicle and the accident took place and, therefore, I decide Issue No. 1 accordingly."

6. The claims Tribunal, Ahmedabad has considered FIR and Panchnama, Exh. 43 and 44. The complaint was filed by driver of Tanker-Shri Kanjibhai and after considering Panchnama report, claims Tribunal has come to conclusion that width of road is 40 ft. He relied upon one decision of this Court in case of United India Insurance Co. Ltd. v. Lalji Hamir reported in 2007 (1) GLR 633. While relying upon the decision of this Court, learned advocate Mr. Thakker emphasise