The judgment emphasizes the need for evidence to determine negligence and the importance of cross-examination in establishing the truth.

JUDGMENT :

DIVYESH A. JOSHI, J.

1. The present first appeal is filed by the appellant under Section 173 of the Motor Vehicles Act, 1988 to assail the judgment and award dated 20.07.2018 passed by the Motor Accident Claims Tribunal (Aux.), at Vadodara in Motor Accident Claim Petition No.1043 of 2012 whereby the claim petition filed by the appellant-original claimant was partly allowed.

2. The appellant-Arunaben Mohanbhai Patel is the original claimant and respondent No.2-Bajaj Allianz General Insurance Co. Ltd. is the original defendant No.2 in the main proceedings, and for the sake of convenience and brevity, they shall hereinafter be referred to as the original claimant and defendant No.2 respectively. The Code of Civil Procedure, 1908 shall hereinafter be referred to as the ‘Code’ and the Motor Vehicles Act, 1988 be referred to as the ‘Act’.

3. The facts leading to the filing of the present appeal may be summarized as under;

3.1 The husband of the claimant, namely, Mohanbhai Shankarbhai Patel met with an accident on the fateful day, i.e,. on 16.01.2012 at about 15:45 O’clock. The deceased was coming towards Ankleshwar from Valia by riding his motorcycle slowly, cautiously and on the right side of the road and when he reached at the place of occurrence, one Eicher Tempo bearing registration No.GJ-16-W-8933 came from the opposite direction in a rash and negligent manner and with an excessive speed and dashed with the motorcycle of the deceased, as a result of which, the deceased fell down and sustained serious injuries and later on succumbed. A complaint in this regard came to be lodged before the Valia Police Station, District: Bharuch being C.R. No.I-14 of 2012.

3.2 Thereafter, the legal heirs of deceased, i.e,. the wife of the deceased has filed the claim petition, seeking an amount of compensation under various heads.

3.3 On 20.07.2018, the Tribunal passed the impugned judgment and award by partly allowing the claim petition filed by the claimant.

3.4 Being aggrieved by and dissatisfied with the impugned judgment and award, the present first appeal is filed by the original claimant by raising manifold grounds.

4. Learned advocate Mr. R.H. Munshaw who appears on behalf of the original claimant has submitted that the impugned judgment and award passed by the learned Tribunal is erroneous, unjust, improper and against the settled principles of law. Learned advocate Mr. Munshaw has submitted that the judgment and award passed by the Tribunal is contrary to the provisions of the Motor Vehicles Act, more particularly, the principle of contributory negligence and, therefore, the same is required to be quashed and set aside. Learned advocate Mr. Munshaw has further submitted that on the strength of the occurrence of the incident, a FIR also came to be registered against the driver of the Eicher Tempo and the concerned Investigating Officer, after collecting evidence and completion of investigation submitted charge-sheet against the driver of the Eicher Tempo. Learned advocate Mr. Munshaw has submitted that, therefore, on the strength of the police papers, it appears that the claimant has successfully proved that the incident of accident is occurred due to sole negligence on the part of the driver of the Eicher Tempo. It is found out from the evidence that the deceased Mohanbhai Shankarbhai Patel was driving his motorcycle on the correct side of the road in a very cautious manner by following the traffic rules and regulations with a moderate speed, whereas the driver of the Eicher Tempo had come from the opposite direction with an excessive speed and in a very negligent manner and dashed with the motorcycle of the deceased, due to which, the incident of accident occurred and the husband of the claimant died and, therefore, the entire 100% negligency is required to be fastened on the head of the tempo driver. Learned advocate Mr. Munshaw has submitted that the evidence collected by the Investigating Officer during the course of investigation