ORAL JUDGMENT

1. The present appeal is filed by the Oriental Insurance Company Limited against the judgment and award dated 6.10.2006 passed by the learned Motor Accident Claims Tribunal (Aux) Fast Track Court No.4, Gadhidham- Kutchchh in M.A.C.P. No.441 of 1999 whereby the learned Tribunal has partly allowed the claim petition by awarding Rs.4,16,000/- with the interest @ 9% and held both the insurance companies as 50% liable to pay the compensation to the claimants.

2. The brief facts giving rise to the present First Appeal are as under:

2.1 On 9.1.1994 when the deceased was travelling in Motor Vehicle Tempo bearing registration No.GRP-5506 with his luggage from Samkhiali to Surajbari at about 13-45 O’clock when they reached near Samkhiali Morbi Road, at that time Truck No. GJ-3-T-2482 driven by opponent No.1 came in rash and negligent manner and dashed and collided with the tempo. Due to said accident, the deceased sustained serious injuries and subsequently succumbed to the injuries.

2.2 The claim petition was filed by legal heirs of the deceased against the opponents for Rs.5,93,000/- towards compensation for the unfortunate death of the deceased in a vehicular accident.

2.3 The Tribunal after evaluating pleadings and evidence tendered by the parties, partly allowed the claim petition for Rs. 4,16,000/- with 9% interest per annum from the date of filing of the claim petition.

4. Mr. Maulik J. Shelat, learned advocate for the appellant Oriental Insurance Company Limited has submitted that the appellant has challenged the impugned order mainly on the ground that the learned Tribunal has committed an error while fastening the liability on the appellant Insurance Company overlooking the fact that the deceased was travelling in the goods vehicle and the accident is prior to the date of amendment and therefore, the learned Tribunal has committed a grave error. It is also further contended that the learned Tribunal has not considered the decision of the Hon’ble Apex Court in the case of New India Assurance Company Limited vs. Asha Rani and others reported in 2003 (2) SCC 223 and therefore, the impugned judgment and award is erroneous and bad in law. It is also further contended that the policy of the vehicle involved in the accident namely the Tempo bearing Registration No. GRP 5506, no extra premium was paid by the owner of the vehicle and therefore, no additional coverage or risk is covered by the present appellant insurance company. It is also contended that the accident was took place on 9.1.1994 prior to the date of amendment and therefore, also present appellant insurance company is not held liable to pay compensation. It is also further contended that so far as the liability of both the vehicles is concerned, the Tribunal has committed an error by coming to a conclusion that both the drivers are equally responsible and negligent for the accident.

4.1 So far this contention is concerned, the learned Counsel appearing for the appellant insurance company submitted that the tempo was in correct side and therefore, the liability of 50% fastened on present appellant is erroneous and bad in law and therefore, the impugned judgment and award requires to be quashed and set aside. He relied upon the deposition of the father of the claimant which is recorded at Exh.45. He has also relied upon the judgment of this Court in First Appeal No. 4550 of 2009 and allied matters. He has also relied upon the judgment of the Hon’ble Apex Court in case of National Insurance Company Limited vs. Baljit Kaur reported in 2004 (2) SCC 1. Lastly he has contended that if it comes to a conclusion that there is a joint liability of both the insurance company then the claimant can recover the amount from the any of the tortfeasor, as per the judgment of Hon’ble Apex Court in case of Kenyei vs. New India Insurance Company and others reported in 2015 (9) SCC 273. He relied upon paragraph Nos. 21 and 22 of the said decision which read as under:-

“21. The same ana