The court emphasized the principles of composite negligence and the necessity for just and fair compensation in motor vehicle accident claims, correcting errors in the assessment of contributory negligence.

JUDGMENT :

(J.C. Doshi, J.)

1. These are claimants’ appeal filed u/s 173 of the Motor Vehicles Act, 1988 (in short “the Act”).

2. First Appeal No.539 of 2006 is filed by the appellants being aggrieved and dissatisfied with the Judgment & Award passed in Motor Accident Claim Petition No.260 of 1992 dated 09-06-2005 by the learned Motor Accident Claims Tribunal (Auxiliary), Morvi,.

2.1 First Appeal No.352 of 2006 is filed by the appellants being aggrieved and dissatisfied with the Judgment & Award passed in Motor Accident Claim Petition No.259 of 1992 dated 09-06-2005 by the learned Motor Accident Claims Tribunal (Auxiliary), Morvi.

3. I propose to decide both these appeals by common judgment, as both of them arise from selfsame common judgment and award.

4. Brief facts of the case are as under:-

4.1 On 19.10.1992, deceased Jerambhai Dev jibhai and decd. Hemantsang Gangaram both were coming on Scooter towards Morvi. Decd. Hemantsang was sitting on back seat. When they rashed near the factory of Ajanta Clock at about 13.15 hrs. at that time the truck No. HR-14-2324 came from wrong side rashly and negligently with Ingla full speed and dashed with the aforesaid scooter. Both the decd. sustained serious injuries and died in the said accident. Therefore, the heirs of deed. Jerambhai have filed C.C. Bo. 260/92 to get ge ati compensation of Rs. 5 lac and the heirs of decd Ju or beso Hemantsang have filed C.C. No. 259/92 to get bas bac compensation of Rs. 15 lac Both the said claim petitions have arisen out of same incident and hence, aiton no both the petitions are consolidated and evidence betlocs vist recorded in C.C. No. 259/92 and decided by this loust common judgment.

5. Heard learned advocate Mr. DD Bhatt for the appellants – original claimants and learned advocate Mr. Sunil Parikh for the respondent No.3 – insurance company.

6. Learned advocate for the appellants would mainly argue on the aspect that thohgh learned Tribunal has unjustly considered 80% negligency of the scooter driver in causing the road accident, yet he would submit that the learned Tribunal’s approach for calculating the negligency of the tortfeasor is totally erroneous as the truck driver did not enter into the witness box to unfurl the real scene of the road accident. He would further submit that instead of taking adverse inference against the truck driver, the learned Tribunal has fastened the negligency of the scooter driver i.e. deceased Jerajbhai to the extent of 80%. He would further submit that even, the learned Tribunal forgot to countenance that the truck is HMV and the scooter is smaller vehicle. He would further submit that the FIR was lodged against the truck driver so also charge sheet. The FIR was filed by the third party, but all these aspects have not been properly considered by the learned Tribunal while assessing the negligency of the vehicle owners. He would further submit that thus, this is a fit case where this Court should interfere with the findings of facts about the negligency of the drivers of the vehicle drawn by the learned Tribunal. He would further submit that MACP No.259 of 2012 was filed by legal heirs of deceased Hemantsang, who was pillion rider in the scooter and yet, the learned Tribunal without understanding the concept of composite negligency and contributory negligency, deducted the amount of compensation equal to negligency of the scooter driver from the total compensation worked out for deceased Hemantsang. So, he submits that it is clear defects on the part of the learned Tribunal.

6.1. On the income aspect, learned advocate Mr. Bhatt has relied upon the judgment in case of Chandra @ Chanda @ Chandraram and another Vs. Mukesh Kumar Yadav and others reported in 2021 LawSuit (SC) 595 to submit that even in absence of documentary evidence, when the learned Tribunal is guessing the income of the deceased, the learned Tribunal should not detach from the reality. He would further submit that as per the judgment of the Hon’ble