ORAL JUDGMENT

1. The present appeal is filed by the Insurance Company challenging the impugned judgment and award passed by the Motor Accident Claims Tribunal (Auxi.), Surat dated 31.07.2009 below Exh. 57 in MACP No. 687 of 1993, whereby the Tribunal has awarded a sum of Rs. 2,37,600/- with interest at the rate of 7.5% p.a. from the date of the claim petition till the date of realization to the respondents No. 1 to 7.

2. The brief facts of the present case are as under.

2.1 On 19.12.1990, the deceased Yusufbhai Daud Ibrahim was going to highway from Kausama village in his truck bearing registration No. GJ-16-T-6621, dashed with the other vehicle. It is the case of the complainant that the deceased head-on collision between two trucks and because of that accident, the deceased was died due to serious injuries sustained by him.

3. Learned advocate for the appellant has submitted that the Tribunal has committed an error while appreciating the evidence of eye witness namely cleaner of the truck wherein the deceased was the driver. It is also further contended that the Tribunal has committed an error by awarding interest at the rate of 7.5% per annum from the date of the claim petition till the date of realization. As the Insurance Company was joined as party respondent much belated stage, therefore, the liability to pay the interest is to be considered from the date of their joining. It is also contended by the learned advocate for the appellant that while considering the negligency, the Tribunal has committed a serious error.

4. As against the submission made by the learned advocate for the appellant, Mr. M.T.M. Hakim, learned advocate for the respondents has submitted that the Tribunal has rightly passed the impugned judgment and award and no interference is required to be called for.

5. So far as the contention raised by the learned advocate for the appellant about the contributory of negligency, learned advocate for the respondent – claimants has relied upon the judgment of this Court in the case of Gujarat State Road Transport Corporation Vs. Kamlaben Valjibhai Vora reported in (2001) 3 GLR 2528. In the case of Kamlaben Valjibhai Vora (supra), this Court has observed in Para-12 as under: “(12) Therefore, the first question which is required to be seriously examined is with regard to the cause of accident, accountability and the issue of rashness and negligence pleaded by the claimants and challenged by the appellant. Undoubtedly, the issue of negligence is an important and integral part of branch of Law of Tort. The burden of proving the negligence is on the party, like that, the claimant or the plaintiff who asserts it. Such a party, therefore, ought to prove the causation. It is not for the wrong-doer to excuse himself by proving that accident was inevitable and due to no negligence of his part. It is, therefore, the person who suffers the harm or injury to prove affirmatively that it was due to the negligence of the tort-feasor or the other side or the defendant, as the case may be. Such a person has to produce reasonable evidence that the accident was the outcome of the negligence of the other side or in a case of road accident, the driver of the vehicle. If primary facts are, successfully, constituted by the evidence of the person wronged or by the person who has become the victim of tort, it is for the alleged tort-feasor or the other side to explain the circumstances, under which the questioned accident occurred. It is not necessary for the plaintiff or the claimant to show that the defendant or the tort-feasor should be, fully, guilty of negligence. The negligence could be established even on the touchstone and yardstick of preponderance of probability. In a case of civil liability, the onus of proof of prima facie showing an element of negligence on the part of the tort-feasor or the other side will shift the onus on the other side to explain the circumstances which led to the tortious act or the road accident. At times,