JUDGMENT :

NISHA M. THAKORE, J.

[1.] The present appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter to be referred as “the Act of 1988”) at the instance of the opponent no.2- Gujarat State Road Transport Corporation (hereinafter to be referred as “S.T. Corporation”) being aggrieved and dissatisfied with the judgment and award dated 29.12.2015 (hereinafter to be referred as “the impugned judgment and award”) passed by learned Motor Accident Claims Tribunal, Vadodara in M.A.C.P. No.277 of 2009.

[1.1] By the said impugned judgment and award, the Tribunal has partly allowed the claim petition preferred by the original claimants under Section 166 of the Act of 1988. The original claimants are held entitled to recover the amount of Rs.5,29,000/- with interest at the rate of 9% per anuum from the date of filing of the claim petition, till its actual realization, from original opponent nos.1 and 2, jointly and severally, with proportionate costs. Hence, the present appeal at the instance of the original opponent nos.2- S.T. Corporation, mainly challenging the issue of negligence and the quantum of compensation.

[2.] Considering the grounds raised in the appeal memo and the submissions made by learned advocate for the appellant, this Court, vide order dated 13.12.2016, had admitted the appeal. In the Interim Application for stay preferred by the S.T. Corporation, a conditional order was passed, thereby directing the S.T. Corporation to deposit the entire award amount with interest and costs with the concerned Tribunal. Further, the Tribunal was directed to disburse 30% of such deposited award amount in favour of the claimants, and remaining 70% was directed to be invested in a fixed deposit scheme in any nationalized Bank. The periodical interest was permitted to be withdrawn by the claimants. The FDRs were directed to be renewed from time to time, pending the disposal of the appeal.

[3.] The notice of admission of appeal is reported to have been duly served upon respondents nos. 1 and 2- original claimants, who are represented through learned advocate Mr. R.G. Dwivedi, with learned advocate Ms. Pooja Hotchandani. With the able assistance of the learned advocates on record for the respective parties, the appeal was peremptorily heard finally.

[4.] Mr. Hardik C. Rawal, learned advocate appearing for the appellant, has assailed the impugned judgment and award by submitting that the learned Judge has failed to appreciate the defense raised by the S.T. Corporation that the motorcyclist had also attributed to the accident and, has thereby committed error in holding the driver of the S.T. Corporation solely negligent. In order to substantiate his argument, learned advocate has mainly relied upon the examination-in-chief affidavit of the driver of the S.T. Corporation being submitted on record at Exh. 23, wherein he has denied his negligence towards accident. It was deposed on oath that the driver of the opposite vehicle had approached from the wrong side in full speed, which had resulted into the accident.

[4.1] Learned advocate has placed further reliance upon the panchnama of the scene of accident produced on record at Exh. 26. The attention of this Court was invited to the fact that the position of the S.T. bus was reported to be in the middle of the road. In such circumstances, the Tribunal ought to have held the driver of the other vehicle equally negligent towards the occurrence of the accident. Merely because the driver of the S.T. Corporation has admitted in his cross-examination that a charge-sheet has been filed against him and a criminal case was registered, cannot be reason to overlook said evidence.

[4.2] On the quantum of compensation, learned advocate has submitted that the Tribunal committed error in determining the compensation of Rs.5,29,000/-, in the facts of the case. It was submitted that the income of Rs.3,000/-, as determined by the Tribunal, is without any proof of income. A challenge was also made