- (1.) THE present appeal is directed against the judgment and the award passed by the Tribunal in Motor Accident Claim Petition No. 75 of 1998 dated 05/10/2006 whereby the Tribunal has awarded total compensation of Rs.1,90,500/ -with interest @ 7.5% per annum out of which, the appellant claimant would be entitled to 50% of the amount as per the apportionment given by the Tribunal between the appellant in the capacity of wife of the deceased with the other claimant, who was the mother of the deceased.
(2.) THE short facts of the case appear to be that on 11/06/1995 when the deceased Dr. Shishirkumar with his wife Dr. Smt. Jagrutiben was going from Morbi to Rajkot on Kinetic motorcycle bearing registration No. GJ37127 of one Vipul Hasmukhbhai Vadgama and when they reached near Panchvati Ashram on the highway at about 9:30 a.m., one truck bearing registration No. GJ12T6343 came from the back side and dashed with the motorcycle, resultantly, deceased Shishirkumar sustained injuries and he succumbed to the injuries whereas, his wife also sustained injuries. The aforesaid accident gave rise to two claim petitions, one filed by the mother of the deceased being claim petition No. 57 of 1998 for compensation of Rs.21 lakhs and the another was by the appellant in the capacity of wife of the deceased being claim petition No. 75 of 1998 for compensation of Rs.21 lakhs. It may also be recorded that the wife of the deceased filed a separate claim petition being No. 722 of 1995 for compensation due to the injuries sustained by her in the accident. So far as claim petition Nos. 57 of 1998 and 75 of 1998 are concerned, they were consolidated and the Tribunal at Morbi ultimately passed the judgment and the award whereby, the abovereferred compensation has been awarded. It may be recorded that the compensation awarded by the Tribunal was 50% to the mother of the deceased being the petitioner in claim petition No. 57 of 1998 and 50% to the wife of the deceased being petitioner in claim petition No. 75 of 1998. So far as the petitioner of claim petition No. 57 of 1998 (mother of the deceased) is concerned, she has not preferred any appeal but the wife of the deceased, who was the petitioner in claim petition No. 75 of 1998, has preferred the present appeal for enhancement of the compensation.
(3.) WE have heard Mr. Mehul Sharad Shah, learned counsel appearing for the appellant and Mr. Sunil B. Parikh, learned counsel appearing for the respondent No. 3 insurance company. The other respondents are served but none appears on their behalf. The first contention raised by the learned counsel for the appellant was on the aspects of negligence attributed by the Tribunal to the extent of 50% to the driver of the motorcycle i.e. the deceased and the driver of the truck insured with the respondent No. 3 insurance company. It was submitted by the learned counsel appearing for the appellant that claimant Jagrutiben was the eyewitness and when she has deposed to the extent that driver of the motorcycle her husband was not negligent and when the driver of the truck had not entered into the witness box, there was no reason for the Tribunal to attribute 50% negligent to the driver of the motorcycle and to hold the driver of the truck 50% negligent. It was submitted that the Tribunal has erroneously considered the contents of the FIR by the owner of the motorcycle, who was not the eyewitness to the accident. In the submission of the learned counsel for the appellant, the driver of the truck was fully negligent for the accident and therefore, the Tribunal has committed error.;