IMPORTANT POINT
The court ruled that the absence of the truck driver required an inference of sole negligence, overturning the Tribunal's finding of contributory negligence against the deceased.

JUDGMENT :

(PER : HONOURABLE MR. JUSTICE MAULIK J.SHELAT)

1. Being aggrieved and dissatisfied with the judgment and award dated 21.07.2017 passed by the Motor Accident Claims Tribunal, Ahmedabad, in Motor Accident Claim Petition No. 176 of 2010, the original claimants as well as the Insurance Company have filed their respective first appeals i.e., First Appeal No. 3948 of 2017 filed by the claimants and First Appeal No. 2273 of 2018 filed by the Insurance Company, under Section 173 of the Motor Vehicles Act (hereinafter referred to as the M.V. Act)

2. For the sake of convenience, the parties shall be referred to as per their original positions before the Tribunal.

BRIEF FACTS OF THE CASE

3. On 19.12.2009 at about 11:30 PM, the deceased - Darshinbhai was going from Ahmedabad to Gandhinagar in the car bearing registration number GJ-1-KA-6920 with his friends Jigneshbhai, Ashishbhai and Jitendrabhai, which was driven by deceased himself. When the car was passing through village Charodi, a truck bearing registration number GJ-9-X-7481 driven by original opponent No.1, after the crossing road wrongly, came all of a sudden and hit the driver side of the car. Due to such collision, the driver of the car i.e., Darshinbhai sustained grievous injuries and succumbed to it.

4. On 21.12.2009, Jitendrabhai Narendrabhai Rajput, who happens to be friend of deceased and an eyewitness, lodged an FIR against driver of truck under sections 279, 337, 304A of IPC read with sections 177 and 184 of M.V.Act, at Sarkhej Police Station, Ahmedabad and narrated the entire set of accident in FIR.

5. After investigating the offence in question, the police had filed a charge sheet at Exhibit 38 against the driver of the truck - the opponent No.1. The Claimants, being the legal heirs of the deceased - Darshinbhai, had filed a motor accident claim petition no.176 of 2010, under Section 166 of the Motor Vehicle Act, claiming compensation of Rs.1,00,00,000/- (one crore) for the death of Darshinbhai due to injuries sustained by him arising out of the use of motor vehicle.

6. The driver and owner of the truck, though served, chosen not to appear before the Tribunal. Therefore, no written statement was filed on their behalf. The Insurance Company of the truck appeared and filed its written statement at Exhibit 27, denying all the facts mentioned in the claim petition.

7. After appreciating the pleadings of the parties, the Tribunal framed issues at Exhibit 29 and answered them by passing an impugned judgment and award.

8. After appreciating the evidence on record and considering the submissions made by the parties, the Tribunal has found the deceased - Darshinbhai contributory negligent in the accident to the extent of 30% and the driver of the truck negligent to the extent of 70%. It awarded a total compensation of Rs.57,29,500/- with 7% interest from the date of the main petition till realization.

9. The original claimants as well as the opponent Insurance Company both are aggrieved by the impugned judgment and award and therefore, preferred their appeals on their respective grounds, which will be dealt with by this Court hereinafter.

SUBMISSIONS OF THE APPELLANT - ORIGINAL CLAIMANTS

10. Learned advocate Mr. Nishit A. Bhalodi, appearing for the original claimants, would submit that the learned Tribunal committed a serious error while deciding issue no.1, i.e., negligence, whereby the Tribunal wrongly held the deceased negligent to the extent of 30% for causing the accident. He would submit that the learned Tribunal neither appreciated the documentary evidence filed by claimants nor appreciated the oral evidence of the complainant, who happens to be an eyewitness being an occupant of the car, in its true spirit, which resulted in an error on the part of the Tribunal holding the deceased contributory negligent to the extent of 30%. He would submit that when FIR and charge-sheet came to be filed against the driver of the truck, who remained absent before the Tribunal to rebut th