JUDGMENT

1. The captioned appeals and cross-objections have been filed against the impugned Judgment and Award dated 29.11.2014 passed by the Learned Motor Accident Claims Tribunal (Aux-3), District: Gandhidham-Kutch, in Motor Accident Claim Petition No. 11 of 2002, whereby the learned Tribunal partly allowed the claim petition and awarded a sum of Rs.4,10,000/- as compensation, along with interest at the rate of 9% per annum from the date of filing of the claim petition till its realization.

2. The succinct facts leading to the filing of the present appeal, as narrated in the claim petition, are that on 04.11.2001 the claimant was riding his Scooty bearing Registration No. GJ-12-M-6669 at a moderate speed and on the correct side of the road from Adipur to Gandhidham. At about 9:45 a.m., when he reached near the ground of IFFCO Colony, the respondent No.1 came driving an ST Bus bearing Registration No. GJ-18-V-6276 in a rash and negligent manner and at an excessive speed, and dashed with the Scooty from behind on which the claimant–appellant was riding. As a result of the said accident, the claimant sustained grievous injuries.

3. Upon being served, respondent Nos. 1 and 2 filed their written statement at Exh. 15, denying the averments made in the claim petition and praying for rejection of the claim petition. The respondent No. 4 – Insurance Company also filed its written statement at Exh. 24, denying the averments made in the claim petition and praying for rejection of the claim petition.

4. Having considered the pleadings of the parties, the learned Tribunal framed the following issues at Exh. 27;

1 Whether it is proved that claimant sustained injuries on account of rashness and negligence on the party of the driver of the vehicle involved in the accident?

2. What amount the claimant is entitled to by way of compensation and from which of the opponents?

3. What award?

5. Having considered the pleadings of the parties, the evidence adduced before the Tribunal, and the submissions canvassed by the learned counsel for the respective parties, the learned Tribunal partly allowed the claim petition and awarded a sum of Rs.4,10,000/- as compensation along with interest at the rate of 9% per annum from the date of filing of the claim petition till its realization. The learned Tribunal also held the claimant who are driving the Scooty negligent to the extent of 20%, while attributing 80% negligence to the driver of the ST Corporation bus.

6. Being aggrieved and dissatisfied with the impugned Judgment and Award, the Insurance Company of the Scooty has filed First Appeal No. 506 of 2015, the ST Corporation has filed First Appeal No. 2122 of 2015, while the original claimant has filed Cross-Objection No. 128 of 2015, challenging the impugned Judgment and Award.

7. Heard the learned counsel for the parties.

8. Learned advocate Mr. Palak Thakkar appearing on behalf of the appellant – New India Insurance Company vehemently submitted that the learned Tribunal, without assigning any reasons, has held the driver of the Scooty contributorily negligent to the extent of 20%. He further submitted that the finding of the Tribunal on the issue of negligence is not sustainable inasmuch as the original claimant had filed the FIR against the driver of the offending ST Bus. He submitted that the FIR has been proved at Exh.40. He further submitted that the version narrated in the FIR is also supported by the Panchnama, which has been proved at Exh.41. He further submitted that a charge-sheet has also been filed by the prosecution agency against the driver of the ST Bus. Therefore, the finding returned by the Tribunal on the issue of negligence is not sustainable and the driver of the ST Bus ought to have been held solely negligent for causing the accident.

8.1. He further submitted that the learned Tribunal has assessed the income of the claimant on the higher side. He submitted that the income was not proved on record and therefore, in the absence of