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Judgment
Aggrieved from the judgment and award passed by the MAC Tribunal (Auxi.) Fast Track Court No. 4, Gandhidham, Kutchh dated 30.11.2006 in MAC Petition No. 1129/1999, the appellant-Insurance Company of the truck involved in the accident has come in appeal.
Brief facts of this case are that on 10.12.1996 at about 3.00 O''clock in the evening, the tanker No. GJ-12-7839 being driven by its driver Prabhat Swami was passing on National Highway no. 8, at fertilizer bye-pass, near Miles India Co., Baroda, towards Bombay side. At that time, a truck with its registration no. GJ-3-T- 872 came from the opposite direction. This truck was moving toward the right side of the driver of the tanker No. GJ-12-T-7839. Truck his the tanker from the driver side and caused accident. At the same time, another vehicle tempo No. GJ-5-U-1910 (Insurance Company in appeal) hit the rear portion of the truck no. GJ-13-T-872. On account of this accident, cleaner of tanker No. GJ-12-T- 7539 was thrown out from the left door and driver Prabhat Swami being on right side of the tanker, succumbed to the fatal injuries. Two persons
including the driver of truck no. GJ-3-T-872 also died in this accident. The accident has occurred on account of rash and negligent driving of truck no. GJ-3-T-872 and tempo no. GJ-5-U-1910. The FIR was lodged by the cleaner of tanker namely Rajubhai Mohanbhai Jogi. The Tribunal held both driver of truck and tempo responsible for causing accident, and accordingly, awarded Rs. 4,00,000/- as compensation to be shared jointly by the Insurance Company of the truck and tempo to the extent of 50% each. No appeal has been preferred by the Insurance Company of the truck, however, Insurance Company of tempo No.GJ-5-U-1910, fastened with liability of 50%, has come in appeal.
Learned advocate for the appellant - Insurance Company has submitted that the driver of the tempo was not at all negligent or liable to pay the compensation. According to him, the accident between tanker and truck has already taken place when tempo hit the rear side of the truck. To support this contention, he has referred to the FIR lodged by the cleaner of the tempo, wherein, it has been stated that after the accident, tempo has hit the rear portion of the truck.
On the other hand, learned counsel representing the original claimants has controverted this submission as according to him
there was nothing in the FIR to suggest that the driver of the tempo was not negligent in this case. According to him, driver of the tempo was equally responsible as he has hit the tempo from behind which further aggravated the injury sustained by the driver of the tanker and that of the truck.
This Court has considered the submissions of both the sides. The accident in question is not in dispute. The main contention of the learned counsel for the appellant is centered around the point that the driver of the tempo was not negligent as the tempo hit the truck from its rear side after the accident. This argument raised by the learned counsel for the appellant could not be appreciated in view of the fact that nobody from the side of owner or driver of the truck has stepped into the witness box. It can be seen from the FIR that after the accident, both the drivers of tanker and truck were tangled in their respective vehicles. There is nothing to suggest that the injured have been removed from the vehicles when the tempo hit the truck from behind. The driver of the tempo was the best person to rebut the allegations regarding rash and negligent driving. However, he has preferred not to come to the Court despite service. In absence of any evidence in contrary, this Court is of the opinion that the driver of the tempo was equally negligent rather more negligent than that of the driver of the truck in causing accident.
Resultantly, the findings recorded by the Tribunal, vide which, the driver of the truck and that of the tempo have been equally held liable to the extent of 50% are upheld and affirmed. The present appeal being devoid of any merits, is dismissed.
Learned counsel for the original claimants has submitted that the amount awarded by the Tribunal is deposited by the Insurance Company and is lying with the Tribunal and is yet not been disbursed to the claimants. Since sufficient time has elapsed, the amount so invested in FDR be disbursed along with the interest to the claimants, forthwith.
Since the main appeal is dismissed and order regarding disbursement has been passed, Civil Application NO. 5491/2017 stands disposed of accordingly.