JUDGMENT

1. The captioned appeal is filed against the impugned judgment and award dated 25.08.2010 passed by the learned Motor Accident Claims Tribunal (Main) at Junagadh in MACP No.446/1999, whereby the learned Tribunal had dismissed the claim petition in toto.

2. The succinct facts leading to file the captioned appeal are that on 29.12.1998, the claimant-Mr. Rafik Mohmed Hingroja was driving a luxury bus bearing registration no.GJ-11-T-1581 at very moderate speed, by observing traffic rules. When he reached near the place of the accident, his luxury bus dashed with the truck of respondent no.1 herein bearing registration no.GTY-6965, which was lying stationary on the highway without any rear signal or indication, thereby causing the vehicular accident. Due to the impact of the said accident, the claimant sustained grievous injuries, including fracture injuries. It is also the case of the original claimant/appellant herein that at the time of accident, he was aged about 48 years and was gainfully engaged as a driver and thereby he was earning a sum of Rs.3,200/- per month. Therefore, the claim petition for seeking the compensation of Rs.3,00,000/- came to be filed.

3. On being served, the respondent no.3/insurance company filed its written statement at Exh.14, thereby denying all the averments made in the claim petition and prayed for rejection of the claim petition.

4. Having considered the pleadings, evidence led by the respective parties and the submissions canvassed by the respective parties, the learned Tribunal had dismissed the claim petition in toto.

5. Being aggrieved and dissatisfied with the impugned judgment and award, the original claimant/appellant herein challenged the impugned judgment and award on the ground of allowance of the claim petition.

6. Heard learned counsels for the parties.

7. Mr. Hriday Buch, learned counsel appearing on behalf of original claimant/appellant herein vehemently submitted that the learned Tribunal had dismissed the claim petition on the ground that the claimant/appellant was solely negligent for causing the accident in question. He submitted that the learned Tribunal has recorded the findings under the issue of negligence on the basis of conjectures and surmises. He further submitted that the claimant/appellant, who was the driver of the luxury bus bearing registration no.GJ-11-T-1581 stepped into witness box and proved on record that the truck bearing registration no.GTY-6965 was parked on the road without any indicator and obstructions in order to avoid the accident. He submitted that by parking the truck in such a manner, the driver of the truck has violated the Rules 190, 191 and 205 of the Gujarat Motor Vehicles Rules. He further submitted that the learned Tribunal has decided the issue of negligence only on the basis of FIR and panchnama. The FIR came to be lodged by the owner of the bus against the claimant/appellant on the basis of the information received from the cleaner of the bus. Therefore, the owner of the bus was not the eyewitness to the accident, hence the FIR is based on hearsay. He further submitted that the panchnama of place of accident proved at Exh.99 reveals that the truck was lying parked on the left side of the road. The bus was also found lying vertical in the middle of the road. The panchnama does not mention as to whether any indicator or light was lit at the time of accident. It has been further argued that the issue of negligence has to be decided on the basis of the evidence available before the learned Tribunal. In support of his contention, learned counsel for the appellant placed the reliance upon the judgment rendered by the Hon'ble Apex Court in the case of Jumani Begam Vs. Ram Narayan & Ors., reported in (2020) 5 SCC 807.

8. Learned counsel for the appellant further submitted that even though the FIR came to be lodged against the claimant and the charge sheet also came to be filed against the claimant, even though the learned tribunal ought to h