JUDGMENT :

NISHA M. THAKORE, J.

1. The present appeal is filed at the instance of original opponent no.3 - insurance company, under Section 173 of the Motor Vehicle Act, 1988, being aggrieved and dissatisfied with the judgment and award dated 31^st January, 2015 passed by the Motor Accident Claims Tribunal, Navsari in MACP no.123 of 2010. By the said judgment and award, the Tribunal has allowed the claim petition preferred by the original claimants - respondent nos.1 and 2 herein holding them entitled to recover a sum of Rs.32,40,000/- as compensation with interest at the rate of 9% per annum from the date of filing of such claim petition till its actual realization, with proportionate costs, from the original opponents nos.1 to 3, jointly and severally. Thus, the Tribunal has exonerated the driver of the other vehicle, Esteem car, involved in the accident, and has also exonerated respondent no.6 - the insurance company of the said vehicle, from its liability to pay any compensation to the claimants. Hence, the present appeal at the instance of the insurance company of one of the offending vehicles - a dumper, involved in the accident, essentially challenging the impugned judgment and award on the ground of negligence vis-a-vis liability to pay the entire amount of compensation as well as the quantum of compensation being awarded on higher side.

2. Considering the grounds raised in the appeal memo and the submissions made by the learned advocate appearing for the appellant - insurance company, the Hon’ble Division Bench of this Court vide order dated 10^th July, 2015 has admitted the appeal. At the stage of admission hearing, the captioned appeal was tagged along with cognate appeals arising out of the common judgment and award of the Tribunal being First Appeal nos.1240 of 2015 and 1242 of 2015. Pending the appeal, by way of interim order dated 10^th July, 2015, the Hon'ble Division Bench had stayed the execution and implementation of the judgment and award of the Tribunal on condition of deposit of the entire award amount together with cost and interest with the concerned Tribunal.

3. From the record, it transpires that the claimants were permitted to seek disbursement of part of the award amount, and the rest of the amount was directed to be invested in a fixed deposit scheme with any nationalized bank, which was directed to be renewed pending the final disposal of the appeal.

4. Mr. H.G. Mazmudar, learned advocate appearing for the appellant - insurance company has vehemently assailed the impugned judgment and award by submitting that the Tribunal committed grave error in appreciating the evidence on record in its right perspective. According to him, on close appreciation of the evidence, more particularly, the FIR at Exh.35, the panchnama of the place of accident at Exh.36, in light of the admission of the respective claimants who were otherwise eyewitness to the accident; being examined at Exh.73 and the driver of the Esteem car being examined at Exh.74, it is evident that the driver of the Esteem car has equally contributed to the accident. Learned advocate had submitted that merely because the appellant - insurance company has failed to examine the driver or any other independent eyewitness to contradict the evidence of the claimant, the Tribunal committed grave error to hold that the appellant - insurance company has failed to prove their defence of contributory negligence.

4.1 It was further submitted that the Tribunal committed error in recording finding that there was no rebuttal of evidence adduced on record by the appellant - insurance company and therefore has erroneously discarded their defence of contributory negligence. My attention was invited to the findings and reasons assigned by the Tribunal on the issue of negligence. It was submitted that the Tribunal has completely ignored the admission on part of the respective claimants of cognate claim petitions, who have otherwise admitted that the accident had occurred on