ORAL ORDER

Heard Mr.Vibhuti Nanavati, learned counsel for the appellant, Mr. G.C.Mazmudar, learned counsel for respondent No.3 – Insurance Company and Mr.A.R.Rocky, for Mr. Nikhil Kariel, learned counsel for respondent No.5 – original claimant. Though served, no one appears for respondent Nos.2 and 4. Learned counsel for the appellant seeks permission to delete respondent No.1 as presence of driver is not necessary for deciding the issue involved in the appeal.

2. Feeling aggrieved by and dissatisfied with the judgment and award dated 17.02.2017 passed by learned Motor Accident Claims Tribunal (Aux-9.), Gandhidham, Kachchh, in Motor Accident Claim Petition No.211 of 2012, the appellant – Insurance Company preferred present appeal under Section 173 read with Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for short).

3. In light of the aforesaid fact and at the request of learned counsel for the parties, the appeal is taken up for its final disposal. Learned counsel for the parties have also provided copies of evidence adduced before learned Tribunal for perusal of this Court.

4. The following noteworthy facts emerge from the record of the appeal:-

4.1 That on 31.05.2009, the claimant was coming from Ahmedabad to Gandhidham in his own Maruti swift car bearing registration No.GJ-12-AE-3349 driven by respondent No.4 and after crossing of Samakhiyali Police Check Post, opp. Near Pawal Hotel, one dumber bearing registration No.GJ-3-W-8142 driven by respondent No.1, overtakes the swift car by rashly manner with high speed without care of any person, and suddenly braked his Dumper without giving any signal and accident took place. Because of the said accident, the claimant sustained injuries over the head and received fractures at chest and left hand and also received injuries on other parts of body and also got multiple fractures. Therefore, the claimant preferred claim petition before learned Tribunal under Section 166 of Act and claimed Rs.15,00,000/-, wherein learned Tribunal awarded a sum of Rs.1,88,000/-. Being aggrieved by the same, the appellant –

Insurance Company has filed present appeal.

5. Learned counsel for the appellant has raised following contentions :-

(a) That the Tribunal has wrongly come to the conclusion that the driver of both the vehicles i.e dumper bearing registration No.GJ-3-W-8142 and Maruti swift car bearing registration No.GJ-12-AE-3349 are composite negligent and the Tribunal has also wrongly held that it is proved that both the drivers were 50 % each contributory negligent in causing the accident.

(b) That considering the manner in which the accident has taken place, the Tribunal has rightly come to the conclusion that the drivers of both the vehicles are equally liable for the accident and has rightly come to the conclusion that the driver of both the drivers are contributory negligent to the tune of 50 %.)

(c) That the swift car was being driven by the driver of said car and respondent No.5 – original claimant has not joined the owner i.e. insured of the said vehicle.

(d) That the owner cannot be considered as third party to claim any compensation against the insurance company and the Tribunal ought to have appreciated that the claimant cannot be joined as party opponent in the claim petition.

(e) That the Insurance Company has to only indemnify insured person as per the terms of the contract of the insurance.

(f) That as the Tribunal has held that driver of the swift car is negligent to the extent of 50 %, driver of the said car would be primarily tort feasor and owner of the vehicle would be would be vicariously liable for the liability and in the facts of the case, when the driver of the car owned by respondent No.5 - claimant himself was found to be negligent, the claimant would not be entitled to any compensation from the company of the car.

(g) Learned counsel for the appellant has relied upon the judgments of the Apex Court delivered in the cases of Dhanraj Vs. New India As