In a motor accident involving a head-on collision, the absence of brake marks for one vehicle and the failure of the insurance company to produce its driver as a witness support a finding of contributory negligence by both drivers.

JUDGMENT

1. The captioned appeal is filed against the impugned judgment and award dated 23.07.2014 passed by learned Motor Accident Claims Tribunal (Auxiliary), City Civil and Sessions Court No.19, Ahmedabad, in MACP No.752/2004, whereby the learned Tribunal had partly allowed the claim petition and awarded the compensation to the tune of Rs.17,49,080/- along with interest at the rate of 9% per annum from the date of filing of claim petition till its realization.

2. The succinct facts leading to file the captioned appeal are that on 24.05.2004, when the claimant-Santokdevi Kamleshkumar Jain was travelling in a luxury bus bearing registration no.GJ-07-P-4247 from Balotra to Surat. When she reached at the place of accident, the driver of truck bearing registration no.GJ-10-V-5108 came by driving his truck from opposite side, at an excessive speed and dashed with the said luxury bus, on which the claimant was travelling. Due to the impact of the said accident, the claimant sustained severe injuries on various parts of her body. It is also the case of the original claimant that at the time of accident, she was gainfully engaged in tailoring work and thereby earning a sum of Rs.3,000/- per month and she was also engaged in household work. Therefore, the claim petition for seeking the compensation of Rs.15,00,000/- came to be filed.

3. On being served, the appellant/New India Insurance Company filed its written statement at Exh.76, while the respondent no.4/Oriental Insurance Company filed its written statement at Exh.33. Both the respondents have denied 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 partly allowed the claim petition and awarded the compensation to the tune of Rs.17,49,080/- along with interest at the rate of 9% per annum from the date of filing of claim petition till its realization.

5. Being aggrieved and dissatisfied with the impugned judgment and award, the appellant/insurance company has challenged the impugned judgment and award on the ground of negligence.

6. Heard learned counsels for the parties.

7. Mr. H.G. Mazmudar, learned counsel appearing on behalf of appellant/insurance company of the offending luxury bus bearing registration no.GJ-07-P-4247 vehemently submitted that the accident had occurred owing to the sole negligence of the driver of the truck bearing registration no.GJ-10-V-5108. He submitted that the accident took place on the crossroad. He further submitted that the learned Tribunal has held that both the drivers of the vehicles equally contributed for causing the accident. He submitted that considering the manner of occurrence of accident, the learned Tribunal ought to have held that the driver of the offending truck contributed to the larger extent for causing the accident. He submitted that the panchnama of place of accident also supported the version of the appellant. Therefore, the finding returned by the learned Tribunal is required to be modified.

8. On the other hand, learned counsel for the original claimant vehemently submitted that there is no infirmity in the finding returned by the learned Tribunal on the issue of negligence. He further submitted that the insurance company has not examined the driver of the luxury bus in order to prove its defense. He further submitted that it was head- on collision, therefore, the learned Tribunal has rightly determined the issue of negligence. He further submitted that there is no infirmity in the impugned judgment and award, therefore, the captioned appeal is liable to be dismissed.

9.