IMPORTANT POINT
The court found the deceased was not negligent in causing the accident, attributing 100% negligence to the other driver, and recalculated compensation based on proper income assessment.

JUDGMENT :

(J.C. Doshi, J.)

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the appellants – original claimants being aggrieved and dissatisfied with the judgment and award dated 12.12.2011 passed by the Motor Accident Claims Tribunal, Sabarkanta at Himmatnagar in Motor Accident Claim Petition No.263 of 2002.

2. Brief facts of the case are as under:

2.1 The brief fact of the present appeal is such that on 12.01.2002, deceased Afjalkhan was going towards Chikhli from Navsari driving truck No.GJ-1-X-4118 and when he was passing on National Highway No.8, at about 5.00 am, opponent no.1 driver of Truck No.HR-28-E-3650 came in wrong side, driving his truck in rash and negligent manner and dashed with the truck of deceased, as a result of which, Afjalkhan sustained fatal injuries and died on the spot.

2.2 FIR of incident was registered before concerned Police Station.

2.3. The claimant filed claim petition under section 166 of MV Act being MACP No.263 of 2002 claiming compensation of Rs.10,00,000/- along with interest jointly and severally from the opponents.

2.4. After appreciating evidence on record, learned Tribunal was pleased to pass judgment and award in tune of Rs.2,61,100/- with 9% interest from the date of claim petition till realization.

2.5. Being aggrieved and dissatisfied with impugned judgment and award dated 01.07.2008, the original claimant has filed present appeal.

3. Learned advocate for the appellants - claimants has submitted that the learned Tribunal committed serious error in assessing contributory negligence of deceased Afjalkhan who was driving one of the vehicle involved in the road accident. He would further submit that learned Tribunal has wrongly apportioned 30% negligence to the deceased in causing road accident despite fact that driver of other vehicle did not enter into witness box to divulge correct scene of road accident. Finding fault with the impugned judgment and award assessing 30% negligence of deceased, it is argued that learned Tribunal has noted that driver of other vehicle involved in the accident came on wrong side to the truck driven by deceased, yet learned Tribunal has fastened negligence of deceased upto 30 % on the ground that both the vehicle are of equal nature and accident took place on head and collusion manner, as such has erred. It is submitted that principle of res-ipsa liquotor would apply as none of the eye witness to the road accident entered into witness box to unfurl correct fact of road accident. It is submitted that panchnama drawn post accident has been referred and perused by the learned Tribunal to draw finding that truck of other vehicle came on wrong side and dashed with the truck driven by deceased, yet for no reasons, deceased is held 30% negligence and therefore, finding of attributing self negligence to the extent of 30% of deceased Afjzalkhan deserves to be quashed and set aside. Alternatively, it is submitted that if this Court comes to conclusion that learned Tribunal has rightly assessed that deceased Afjalkhan was 30% negligent, owner of the truck driven by deceased had purchased premium of paid driver and in view of judgment of Full Bench of this Court in the case of Valiben Laxmanbhai Thakore v/s. Kandla Dock Labour Board [2022 (1) GLR 440], owner and insurer of truck driven by deceased would be liable to pay compensation equal to negligence of deceased Afjalkhan.

3.1. Secondly, it is submitted that deceased was driving truck at the relevant time. He was driver of heavy goods vehicle. Learned Tribunal did not consider this aspect and taken meager amount of Rs.2500/- as income per month of deceased. It is submitted that deceased Afzalkhan was skilled driver and riding heavy goods vehicle at the relevant time and in view judgment of Hon'ble Apex Court in the case of Minu Rout v/s. Satya Pradyumna Mohapatra and Ors. [(2013) 10 SCC 695], to calculate dependency loss income has to be taken as Rs.6000/- per month.