JUDGMENT :

1. Heard learned advocate Mr.M.T.M. Hakim for learned advocate Mr.Mohsin M. Hakim for the appellant and learned advocate Mr.Rajesh Chauhan for learned advocate Mr.H.S.Munshaw for the defendant No.2.

2. The appellant is the original claimant who preferred Motor Accidents Claim Petition No.878 of 2007 under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act’) claiming compensation of Rs.3,00,000/- for the injuries sustained by him in the accident which had occurred on 12th June, 2007 at Kapuari Chowkdi within the jurisdiction of Panigate Police Station of Vadodara City.

3. The facts stated in the claim petition are as under :

3.1. It is the case of the claimant that on 12.06.2007, the claimant was travelling from Idar to Bodeli in S.T.Bus bearing registration No.GJ-18-V-9592 which was being driven by the opponent no.1 in a rash and negligent manner and at a very high speed and when the bus driver i.e. opponent no.1 tried to cross the road without paying attention to other vehicles on road dashed the bus with one Tanker and caused the accident. As a result of this accident, the claimant sustained grievous bodily injuries. Thus, it is averred that the present accident had occurred, because of rash and negligent driving on the part of opponent no.1-bus driver.

3.2. So far as the compensation is concerned, it is averred by the claimant that, as a result of this accident he had sustained fracture in right leg and injury over left eyebrow. It is further stated that, at the time of accident he was doing masonry work and he was earning Rs.3,000/- per month. But due to fracture of right leg, the claimant has difficulty in walking and bending his right leg. He was unable to do masonry work because of which he had to suffer the loss of income. Moreover, on account of injuries, he underwent great pain, shock and suffering. He had to incur the expenses towards the medicines, transportation, attendant, special diet etc. Thus, the claimant has claimed Rs.3,00,000/- by way of compensation under all heads in the claim petition.

3.3. The Motor Accident Claims Tribunal, Vadodara (for short ‘the Tribunal’) passed the judgment and award dated 5th October, 2016 awarding Rs.66,668/- being 40% of Rs.1,67,200/- to claimant by way of compensation from the opponents jointly and severally together with interest at the rate of 9% per annum from the date of petition till payment with proportionate cost of the petition.

3.4. The Tribunal while determining the liability held that the respondent No.2-Gujarat State Road Transport Corporation and the driver of the bus are jointly and severally liable to the extent of 40% for causing the accident as determined by the Tribunal attributable to the S.T. Bus and the remaining 60% of negligence attributable to the other vehicle being unknown Tractor Trolley.

3.5. The Tribunal in paragraph No.8.5 of the judgment for determining the composite negligence of the S.T.Bus and the Tractor Trolley held as under :

“8.5] A perusal of the evidence produced on record, it is clear that, at the time of accident the offending bus was going towards Chhotaudepur from Vadodara and when the bus was about to cross the Kapurai chowkdi, at that time, one unknown Trailer came from Ahmedabad side and dashed against the back side of the conductor side of the bus and the said fact is also supported by the panchnama Exh.20. It is not in dispute that, at the relevant time, the opponent no.1 bus driver was to cross the road to go Dabhoi road and the passengers were travelling in the bus. Admittedly, the present accident had taken place in the midnight on the four crossed road. So, when the driver of ST bus was carrying the numbers of passenger, he must have taken due and proper care and circumspect while crossing the road. The safety of the passengers is the prime duty of the bus driver. In the given case, the accident had taken place while the bus driver was trying to cross the road. At the point of relevant time, if the driver of