IMPORTANT POINT
The main legal point established in the judgment is the interpretation of section 167 of the Motor Vehicle Act, 1988, which clarifies that the claimant is required to exercise an option for compensation under either of the Acts but not under both.

JUDGMENT :

Order in First Appeal No.4930 of 2006 and First Appeal No.926 of 2007.

1. First Appeal No.4930 of 2006 is filed by the claimant for enhancement of compensation amount.

1.1 First Appeal No.926 of 2007 is filed by Insurance Company of Truck No.RNC-6411, impugning the judgment on the ground that 100% negligence attributed to the driver of the said Truck, which is not sustained with the evidence on record.

1.2 While, First Appeal No.2251 of 2016 is filed by the Insurance Company of Truck No.GJ-10- T-0357 on the ground that the claimants are heirs of deceased - Kangar Shamgar Gosai, who have also secured the judgment under Workmen’s Compensation Act from Ex officio Commissioner, Workmen’s compensation Act, Labour Court Jamnagar after the judgment and award rendered in the impugned MACP No.880 of 1997.

2. The appeals are directed against the judgment dated 15.05.2006 passed by Motor Accident Claims Tribunal (Aux.), Jamnagar in MACP No.880 of 1997.

3. The facts of the case, as was noted by the Tribunal suggests that deceased - Kangar Shamgar Gosai was Truck driver of Truck No.GJ-10- T-0357, on 12.12.1996 he along with his cleaner Kantibhai Harjibhai Patel. They in the truck loaded with bricks, were going from Khambhaliya to Biyavar. When they reached near village Amirgadh Palanpur at about 8.30 p.m., Truck No.RNC-6411 came from Abu Road. It was alleged that the driver of Truck No.RNC-6411 was driving the vehicle in rash and negligent manner and collided with Truck of the deceased. As a result the driver of Truck No. GJ-10-T-0357 died. The FIR was lodged by the cleaner against the driver of Truck No.RNC-6411.

4. Ms. Sharmishta A.Dave, learned advocate for the Insurance Company submitted that the Tribunal has not appreciated the evidence on record in accordance to the facts pleaded. The F.I.R. and the panchnama would not give a correct picture of the actual accident, as the FIR has been lodged by the cleaner, who would be an interested party; and further panchnama has been drawn two days after the accident, hence, would not disclose the actual possession of the vehicle; however, Advocate Ms. Dave submitted that the panchnama if perused, then both the vehicles are required to be held negligent for the accident. The driver of Truck No.GJ-10-T-0357 was also in high speed.

4.1 Advocate Ms. Dave submitted that the width of the road is approximately 10 feet in the year 1995, and if the shoulder side of the road is considered about two feet, then the road for passage would be almost about 7 to 8 feet, which Ms. Dave submitted would be impossible for both the vehicles to pass at the very same time.

4.2 Advocate Ms. Dave further submitted that the drivers of both the vehicles have died on the spot, the effect of the accident and its impact, had been on both the vehicles. Ms. Dave stated that both the vehicles have been damaged on the front side, and since the F.I.R. has been given by the cleaner of Truck No.GJ-10-T-0357 and none could come from the side of the Truck No.RNC- 6411, as the driver has already died, Ms. Dave submitted that the version from the side of the Truck No.RNC-6411 could not be rebutted, and the Tribunal has placed reliance only on the version of the complainant.

5. Countering the argument, learned advocate Mr.Premal S.Rachh submitted that the Tribunal has considered the evidence which had come on record, and has rightly laid down the sole negligence of the driver of Truck No.RNC- 6411.

6. The Tribunal on consideration of the submission has noted that F.I.R. has been lodged against the driver of Truck No.RNC-6411. Both the Truck drivers have died in the accident. The Tribunal having considered the panchnama found that there were marks of tyres on application of the brakes by the driver of Truck No.GJ-10-T- 0357, and the front part of the Truck No.RNC-6411 collided with the said Truck. The Tribunal has also taken into consideration, the observation of the Panchas in the Panchnama, who have expressed the opinion that the accid