IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 1049 of 2012 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV sd/-

and HONOURABLE MR. JUSTICE MAULIK J.SHELAT sd/-

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Approved for Reporting Yes No ==========================================================

TUSHARBHAI MANHARLAL SINCE DECD. THROUGH HEIRS & ORS.

Versus BALDEVSING JOGINDERSING RAM & ORS.

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Appearance:

MS AMRITA AJMERA(5204) for the Appellant(s) No. 1,1.1,1.2,1.3,1.4 MR GC MAZMUDAR(1193) for the Defendant(s) No. 6 MR HG MAZMUDAR(1194) for the Defendant(s) No. 6 MR NAGESH C SOOD(1928) for the Defendant(s) No. 2 MR PALAK H THAKKAR(3455) for the Defendant(s) No. 4 RULE SERVED for the Defendant(s) No. 7 RULE UNSERVED for the Defendant(s) No. 1,3,5,8 UNSERVED EXPIRED (R) for the Defendant(s) No. 9 ==========================================================

CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV and HONOURABLE MR. JUSTICE MAULIK J.SHELAT Date : 12/12/2024

ORAL JUDGMENT

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

1. The present appeal has been filed by the original claimants under Section 173 of the Motor Vehicle Act (the MV Act) challenging judgment and award dated 06.05.2011 passed by the Motor Accident Claim Tribunal (Auxilliary), Surendranagar in Motor Accident Claim Petition (MACP) No.120 of 2000. The parties will be referred as per their original position in the Claim Petition.

2. Short facts:

2.1 On 11.07.1999 deceased Tusharbhai was pillion rider on motorcycle bearing registration No. GJ 13 D 9147 owned by opponent No.7 which was driven by opponent No.8. They were proceeded towards Chotila, at that time, one tanker bearing registration No.MH 04 P 1437, motorcycle bearing registration No.GJ 03 F 8283 and one another tanker No. GJ 2 V 4899 came from Chotila side. They appears to be collision between all four vehicles wherein pillion rider of motorcycle bearing registration No.GJ 13 D 9147 i.e. Tusharbhai had sustained serious injuries and died during course of his treatment on

24.11.1999.

2.2 The death of Tusharbhai was arising out of use of motor vehicles involved in the accident, his legal heirs have chosen to file MACP No.120 of 2000 under Section 166 of the MV Act claiming compensation of Rs.20,00,000/- to be recovered from driver, owner and insurance company of vehicles involved in the accident. Notice came to be served upon the opponents of claim petition wherein driver and owner of the respective vehicles have chosen not to appear. Thereby, not contested the claim petition. Whereas respondent Nos. 2, 4 and 6 insurance company of different vehicles involved in the accident have appeared and filed their respective written statement at Exh.13, 18 and 27 respectively. The claimants have tendered their oral and documentary evidence in support of their claim. There is no counter evidence submitted by any of the opponents.

2.3 Documentary evidence produced by the claimants are as under:

2.4 After hearing the parties and appreciating evidence on record, the tribunal has found driver of tanker No. MH 04 P 1437, 30% negligent, driver of tanker No.4899 negligent to the extent of 20% whereas rider of both the motorcycles found 5% each negligent respectively. The deceased was pillion rider of motorcycle No. GJ 13 D 9147. It was the case of composite negligence whereby claimants can recover entire compensation from any of the tor