The deposition given before the Tribunal should be given more weight than the contents of the F.I.R. and other police records when determining liability in a motor accident claim.

JUDGMENT :

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by appellant-New India Assurance Co. Ltd. (Original Opponent No.3), being aggrieved and dissatisfied with the judgment and award dated 17.08.2013 passed by the Motor Accident Claims Tribunal (Aux.), Vadodara in Motor Accident Claim Petition No.775 of 2007, by which the Tribunal has awarded Rs.4,20,000/- with 7.5% per annum interest to the claimant, by holding Opponent Nos.1 to 3 liable, jointly and severally.

2. Brief facts of the case are as under:

2.1 On 06.05.2006 at about 2.45 p.m., the claimant was travelling in Truck bearing registration No.GJ-7-X-986 as a labourer for loading and unloading of sand and was proceeding towards Vadodara. The said Truck was driven by opponent No.1-Siraz Fatehsinh Mansoori in rash and negligent manner in excessive speed. While the Truck was passing through Kishan Nagar Bus Stand near village Kelanpur. At that point of time, one of the tyres of the Truck burst and therefore, Opponent No.1 lost his control over the vehicle and collided with tree and turned turtle. Due to that the claimant sustained severe injuries. As the accident occurred due to rash and negligent driving by Opponent No.1, the complaint was lodged at Varnama Police Station being C.R.I-51 of 2006. Accordingly, as the claimant has suffered physically, mentally as well as financially, the claimant has filed the claim petition under the provision of Section 166 of the Motor Vehicles Act, 1988 for getting the compensation of Rs.5,00,000/-.

2.2 The Tribunal has issued summons to all the opponents. Opponent Nos.1 and 2 chose not to appear before the Tribunal. Opponent No.3-Insurance Company has appeared through advocate and filed its written statement at Exh.12, wherein the claim of the claimant is denied in toto and also denied the age, income, injuries & fracture and fact of the accident. Thereafter, he has prayed to dismiss the claim petition.

2.3 The Tribunal has framed the issues for its determination. Thereafter, the claimants has field his affidavit at Exh.20 and has also produced the documentary evidence; like certified copy of the Message Form, certified copy of the Panchnama, original discharge card of the claimant, original permanent disability certificate of the claimant issued by Dr. Nikesh Shah, copy of the R.C. Book of involved Truck, certified copy of charge-sheet, consent pursis, insurance policy of involved Truck, Xerox copy of plice statement of the claimant and xerox copy of police statement of the claimant’s wife Minaben Baria, at Exh. 20 to 35.

2.4 The Tribunal, after considering the oral and documentary evidences, came to the conclusion that the claimant is entitled to get compensation of Rs.4,20,000/- with 7.5% per annum interest to the claimant, by holding Opponent Nos.1 to 3 liable, jointly and severally.

2.5 Being aggrieved and dissatisfied with the above findings on the aspect of quantum as well as liability of the Insurance Company, the present First Appeal is preferred by the insurance Company.

3.1 Learned advocate Mr. Vibhuti Nanavati for the appellant-Insurance Company has submitted that the Tribunal had erred in passing the impugned judgment and award, by not considering the evidence available on record, which is against the law. Further, he has submitted that the Tribunal has failed to consider the contents of the F.I.R. at Exh.34, which was filed by the claimant-Balubhai Lallubhai Baria, wherein it has been recorded that the claimant was proceeding to the house of his in-laws at village Chapariya and he was walking towards village Chapariya and could not find any passenger carring vehicle except the said Truck, which was carrying sand. He occupied the Truck and also stated that other passengers has also occupied in the same Truck.

3.2 Further, he has submitted that the Tribunal ought to have held that the claimant-Balubhai Lallubhai Baria was occupied in the Truck as an unthorized passenger. Further, he has su