ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A.J.DESAI)

1. By way of the present appeal, the appellant – United India Insurance Company of rickshaw bearing registration No.GJ-7-W-232 owned by respondent No.5 – Mansinh Prabhatsinh Gohil, who happens to be owner as well as driver of the rickshaw, has challenged the judgement and award dated 21/12/2009 passed by learned Motor Accident Claims Tribunal (Auxi.), Vadodara in MACP No.1626 of 1999 mainly on two grounds the contributory negligence attributed to the driver of the rickshaw to the extent of 50% as well as quantum of compensation awarded by the learned Tribunal.

The appeal came to be admitted by co-ordinate bench of this Court vide order dated 22/11/2010. Respondents- original claimants have been represented by learned advocate Mr.Nilesh Pandya whereas respondent No.4- The Gujarat State Road Transport Corporation has been represented by learned advocate Ms.Vasavdatta Bhatt.

2. Short facts, arising from the record, are as under: That one Jigneshbhai son of Navnitbhai Chandubhai Patel along with his friend Bhandish was travelling in a rickshaw bearing registration No.GJ-7-W-232 on 09/06/1999 at around 8:30 pm. When the said rickshaw came near Kokran Hanumanji Temple, at that time, ST bus bearing registration No.GJ-1-Z-4248 came from Samarkha to Nadiad i.e. from opposite side in rash and negligent manner with excessive speed and hit the rickshaw. Pursuant to the said accident, the rickshaw turned turtle, pursuant to which, Jigneshbhai sustained serious injuries and during the transit, he lost his life.

The legal heirs of Jigneshbhai filed a claim petition under section 166 of the Motor Vehicles Act claiming compensation. The respondents filed their written statements and opposed to grant any compensation. Learned Tribunal by the impugned judgement and award dated 21/12/2009 allowed the petition in part and held that driver of the rickshaw was negligent to the extent of 50% whereas driver of the ST bus was also negligent to the extent of 50% and awarded compensation to the tune of Rs.14,71,372/-. Hence, this appeal.

3. Mr.Maulik Shelat, learned advocate for the appellant – insurance company would submit that learned Tribunal has committed an error in holding liable the driver of the rickshaw to the extent of 50% without any evidence. He would submit that after committing the accident, driver of the ST bus ran away from the spot of incident along with ST bus itself and parked the said bus in the Depo. He would submit that an FIR was also lodged against him for which, he was charge-sheeted by the competent criminal court.

By taking us through the deposition of Bandish Natubhai Gohil at Exh-15, who was examined at the instance of the claimant and who was travelling with the deceased in the rickshaw, he would submit that he has categorically stated that the ST bus came in wrong side and dashed with the rickshaw, pursuant to which, rickshaw turned turtle and the deceased sustained serious injuries. He would submit that there was no cross-examination at the instance of GSRTC, whose employee (driver)

had driven the ST bus in full speed in wrong side.

By taking us through the panchnama at Exh-35 drawn on

11/06/1999, i.e. he would submit that the same was drawn on the next day of accident, which suggests that panchnama of ST bus was prepared in the depo. It records that front part of the driver side bumper was broken and parking light of the driver side was also broken. He, therefore, would submit that witness examined at the instance of ST Corporation i.e.

driver of the ST Bus, had deliberately not stated the correct facts.

By taking us through the deposition of driver of the ST Bus namely Ambalal Naranbhai at Exh-22, he would submit that he has deliberately not come forward with the correct facts. He would submit that he has denied that he was driving the vehicle, however, it is undisputed fact that the FIR was lodged against him and he was charge- sheeted for the aforesaid offence. He would sub