JUDGMENT :

1. The present First Appeal is filed under Section 173 of the Motor Vehicles Act, for seeking enhancement of amount which has been awarded by the Motor Accident Claims Tribunal (Aux) Bharuch Camp at Rajpipla dated 20.09.2005 in M.A.C.P. No. 1014 of 1989 (Main) consolidated with M.A.C.P. 587 of 1991.

2. The facts in brief which has given rise to the present appeal i.e. First Appeal 2313 of 2009 filed by the original claimant is that at the relevant point of time, deceased Shanabhai alias Chhanabhai (deceased in M.A.C.P. No. 1014 of 1989) was travelling in a Truck (Dumper) bearing registration No. GTY 6833 and the applicant of M.A.C.P. No.587 of 1991 was a driver of the said Truck. On the said date i.e. 28.04.1989, deceased Shanabhai alias Chhanabhai was travelling in a Truck bearing registration no. GTY 6833 along with his luggage from Motavan and was going towards Village Bhadarva. At that time, on Ankleshwar – Rajpipla State Highway near Gamkuva Bus Stand, one Truck bearing registration MWU 2328 was coming from the opposite direction and going towards Ankleshwar with excessive speed in a negligent manner and while overtaking the vehicle going ahead of it, despite signal being given by driver of Truck bearing registration no. GTY 6883, the said Truck bearing registration no. MWU 2328 dashed with the Truck in which deceased Shanabhai alia Chhanabhai was travelling i.e. Truck No. GTY 2328. The said Truck i.e. MWU 2328 was coming in a wrong direction and both the vehicles dashed on account of which deceased Shanabhai alias Chhanabhai and applicant i.e. Gadvabhai (M.A.C.P. No. 587 of 1991) sustained serious injuries. The injured i.e. Gadvabhai and deceased Shanabhai alias Chhanabhai at the relevant point of time were taken to the hospital initially at Rajpipla Hospital and then were transferred to S.S.G. Hospital at Vadodara. Shanabhai alias Chhanabhai died in the hospital at Vadodara on 18.06.1989, whereas, appellant – applicant (M.A.C.P. No. 587 of 1991) sustained serious injuries and was admitted in Rajpipla Civil Hospital, treated as indoor patient from 28.04.1989 to 12.05.1989. Since he was having fracture at Patella (Right) and head injury and other injuries on various parts of the body, the appellant was operated and plaster was also applied on him. As a result of these serious injuries and the death of Shanabhai alias Chhanabhai, claim petitions were presented for seeking compensation from the opponents jointly and severally. Insofar as claim petition being M.A.C.P. 1014 of 1989 is concerned, an amount of Rs.5 lakhs was sought by the legal heirs of the deceased by way of compensation i.e. by the widow and children whereas, in the case of present appellant, claim petition was submitted for seeking compensation for an amount of Rs.1 lakh from the opponents, who are driver, owner and the Insurance Company.

2.1. Since this present appeal is relating to M.A.C.P. No. 587 of 1991 and not relating to M.A.C.P. No. 1014 of 1989, the facts relating to it are taken from the order passed by the Motor Accident Claims Tribunal (Auxi.) Bharuch Camp at Rajpipla (hereinafter referred to as the “Tribunal”) in M.A.C.P. 587 of 1991. The opponents i.e. opponents 1, 2 and 3 have been deleted, whereas, opponent no. 4 though duly served with the summons remained absent and hence, the Court proceeded exparte against them. In M.A.C.P. No. 587 of 1991, opponent no. 5 i.e. New India Insurance Co. Ltd., through its learned advocate filed reply at Exhibit-19 inter alia contending that the age and income of the applicant are denied. It was also denied that the applicant suffered any accidental injury as alleged and it is also denied that opponent no. 4 is the owner of the Truck (Dumper) No. GTY 6833 and the said dumper is admitted to have been insured with the opponent Insurance Company. It was also contended that opponent nos. 4 and 5 are not necessary party and opponent no. 4 has allowed the passengers in the Truck and committed breach of polic