ORAL JUDGMENT

1. The present appeal is filed by the appellant – Insurance Company under Section 173 of the Motor Vehicles Act, being aggrieved by and dissatisfied with the judgment and award dated 28.2.2022 passed by the Motor Accident Claims Tribunal at Rajkot in Motor Accident Claim Petition No.1837 of 2015, by which, the Tribunal has partly allowed the claim petition by awarding Rs.6,23,288/- with 9% p.a. interest to be paid to claimant/s, by holding opponents liable, jointly and severally, after deducting 50% negligence of the deceased.

2. The facts of the present appeal are as under :

2.1 The claim petition was filed by the claimant/s stating that the deceased was aged 23 years at the time of accident and was unmarried and he was serving in Balaji Lime and was earning Rs.10,000/- per month; that on 6.11.2015, at about 1.30 p.m., the deceased was driving his motorcycle no.GJ.03EG.9665 on the left side the road slowly and was coming towards his home, at that time, on the overbridge at Greenland choki in Rajkot city, the driver of the opponent truck came driving his truck in a rash and negligent manner and the deceased motorcycle dashed it from behind due to which he sustained serious injuries and he died. Therefore, the claim petition was filed by the claimants claiming compensation.

2.2 The notices were served to the opponents. The opponents filed the written statements before the learned Tribunal contesting the contents of the claim petition. The issues were framed by the Tribunal. Oral as well as documentary evidence were led before the Tribunal. After hearing the submissions made by the rival parties, the Tribunal has partly allowed the claim petition(s) and awarded compensation as noted above.

2.3 Hence, the appellant/s-claimants have filed the present appeal before this Court.

3. Learned advocate for the appellant/s-claimants has mainly assailed the impugned judgment and award on the point of negligence. He submitted that the learned Tribunal has erred in holding the deceased negligent to the extent of 50%, though there is no evidence of independent witness to show that the deceased has contributed to the accident and that as the driver of the truck was not examined, the learned Tribunal ought to have drawn adverse inference against the respondents; that it is also required to be noted that the FIR and chargesheet are filed against the driver of the truck. Learned advocate has relied on the judgment in the case of United India Insurance Co.Ltd. V/s Rehanaben Salimbhai Mukindo and others reported in 2019 ACJ 2498 and submitted that the deceased cannot be held negligent for the accident and therefore this appeal be allowed and the impugned judgment and award be modified.

4. I have considered the submissions made at the bar and perused the impugned judgment and award. It clearly transpires from the same that the incident has occurred in the afternoon at 1.30 p.m., therefore, it can be said that it is broad day light and there are no chances of not seeing the truck by the motorcyclist. Further, from the complaint filed by the brother of the deceased, it is stated that he called his brother as he was in need of the motorcycle and some rickshaw driver picked up the phone and informed about the accident and therefore he went to the place of incident and saw that the truck was lying on the overbridge and his motorcycle was below the truck from behind and he filed the complaint within one hour of the accident and stated that as the truck driver applied sudden brake, his brother’s motorcycle hit the truck was behind and slide below it and his brother died due to injuries. Even the panchanama reiterates the same. The deposition of the truck owner also states that as there was some default in the truck, it was going at a speed of about ten per km., which is very slow, and the motorcyclist hit it from behind and the accident occurred. Thus, from the complaint, panchanama of scene of offence, evidence of the applicant/s-claimant/s and t