IMPORTANT POINT
The court determined that the driver of the tanker was solely negligent in the accident, overturning the tribunal's finding of contributory negligence and awarding additional compensation to the claimants.

JUDGMENT :

MAULIK J.SHELAT, J.

1. The present appeal is filed under Section 173 of the Motor Vehicle Act by the original claimants challenging judgment and award dated 18.04.2011 passed by the Motor Accident Claims Tribunal, (Auxiliary) Ahmedabad (Rural) in Motor Accident Claim Petition No. 1223 of 1997. Parties are referred as per their original position.

2. Short facts:

2.1 On 25.03.1997 the deceased Pareshbhai Nandubhai Patel was riding his scooter bearing registration No.GBN 7703 from Gota towards Chandlodiya at about 7:30 pm in the evening and when he reached near Bhavani Auto Care, at that time opponent No.1 came with his tanker bearing registration No.GRX 4091 from the opposite side in rash and negligent manner dashed with scooter of deceased and ran wheel over the deceased.

2.2 It is the case of claimants that due to rash and negligent driving on the part of the driver of tanker which came on wrong side and dashed with the scooter of the deceased, he has sustained injuries and succumbed to it.

2.3 The claimants are legal heirs of deceased Pareshbhai who died in vehicular accident filed claim petition under Section 166 of the Motor Vehicle Act (hereinafter referred to as ‘M. V. Act’) claiming compensation of Rs.24,64,000/- from driver, owner and insurance company of tanker involved in the accident.

2.4 It appears that driver of tanker was deleted and owner of tanker has appeared and filed his written statement at Exh.20. the opponent No.3 – insurance company of tanker has also filed written statement at Exh.25 denying all averments made in the claim petition.

2.5 After appreciating evidence on record, tribunal has found both drivers negligent for causing accident. Thereby, held that driver of tanker was negligent to the extent of 85% whereas deceased / rider of the scooter was found 15% negligent for causing accident.

2.6 So far as quantum of compensation is concerned, after appreciating the fact that deceased was son of agriculturist having agricultural land and income from animal husbandry work, due to supervision loss caused to the family of the deceased, monthly income is considered as Rs.3000/- and after following decision of Honourable Apex Court in case of Sarla Verma and Ors. vs. Delhi Transport Corporation and Another reported in (2009) 6 SCC 121, awarded total compensation of Rs.5,21,000/-, out of which 15% was deducted for contributory negligent of deceased and thereby, tribunal has awarded total Rs.4,43,000/- to the claimants.

3. Being aggrieved and dissatisfied with the impugned judgment and award passed by the tribunal, original claimants have preferred the present appeal on issue of negligence as well as quantum of compensation so awarded by the tribunal.

4. Submissions of appellant:

4.1 Learned advocate Mr. Kaival D. Patel for learned advocate Mr. Jigar G. Gadhavi would submit that the tribunal has committed serious error by holding deceased contributory negligent to the extent of 15% for causing an accident when tribunal itself came to the conclusion that tanker had came from wrong side of the road and dashed with the deceased then in absence of any oral evidence of driver of the tanker to rebut such fact, deceased could not have been held contributory negligent for the accident. He would further submit that FIR and Panchnama clearly prove sole negligence of driver of tanker who remained absent before the tribunal to rebut the allegations of his sole negligence, then in such factual situation, an adverse inference ought to have been drawn against him.

4.2 He would further submit that accident had taken place in outskirts of the Ahmedabad City but it was not on highway then tanker driver has to be more cautious while plying heavy vehicle in public place. According to him, it is not the case of contributory negligence and to that extent impugned judgment requires to be interfered with by this Court.

4.3 Learned advocate Mr.Patel for the claimants would submit that deceased was son of agriculturist holding agricultural