IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU M.A.C.M.A.No.2653 of 2007 DATE:07.12.2010 Between: United India Insurance Co. Ltd. Warangal …… Appellant And Kunta Sudarshan and another …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU M.A.C.M.A.No.2653 of 2007 JUDGMENT: The insurance company is the appellant. Aggrieved by finding of the Motor Accidents Claims Tribunal-cum-District Judge, Warangal in O.P.No.736 of 2001 in award dated 24.04.2007 to the affect that oil tanker bearing No.AP 36 T 674 was driven in rash and negligent manner resulting in this accident, this appeal is filed. This appeal is filed after the insurer obtaining permission under Section 170 of the Motor Vehicles Act from the lower Tribunal at the appropriate stage. Quantum of compensation is not in dispute. 2) It is a case where there was collision between two opposite vehicles viz., D.C.M van bearing No.AP 15 U 3476 and oil tanker bearing No.AP 36 T 674. The claimant/injured is D.C.M. van driver. The claim was made only against owner and insurer of the oil tanker, without impleading owner and insurer of the D.C.M. Van. The lower Tribunal after considering evidence on record came to the conclusion that oil tanker driver was at fault and awarded compensation of Rs.4,20,000/- against its owner and insurer. 3) It is contended by the appellant’s counsel that it is a case of head on collision between two vehicles and that therefore, the lower Tribunal should have apportioned liability at 50% each dividing negligence on the part of each driver. The appellant’s counsel placed reliance on Bijoy Kumar Dugar V. Bidyadhar Dutta[1] in support of his contention. In that matter, persons relating to both the vehicles were impleaded in the claim petition and evidence was let in by all the parties and on facts, the Tribunal came to the conclusion that there is contributory negligence by both the drivers and apportioned the compensation at 25% and 75%. Ultimately when the matter came up before the Supreme Court, it was held that compensation has to be apportioned at 50% each in case of head on collision and that since it was not a case of head on collision, but one vehicle had dashed the other vehicle by its side killing driver of the car, the Tribunal had rightly apportioned the compensation. Thus, apportionment of negligence resulting in apportionment of compensation depends on facts and circumstances of the case established by evidence let in by both the parties before the lower Tribunal. 4) During enquiry of the claim petition before the lower Tribunal, the injured examined himself as P.W-1 and marked Exs.A-1 to A-5 on his behalf. No one was examined on behalf of either the insured or the insurer. The insured/owner of the oil tanker remained exparte before the lower Tribunal. Even the contesting insurer did not let in any evidence before the lower Tribunal. P.W-1 who is the insured is the most appropriate person to be examined as eye witness to the occurrence. It is the petitioner’s case in the petition as well as his evidence as P.W-1 that in the outskirts of Konejersi, the oil tanker driven by its driver in rash and negligent manner at high speed came on wrong side of the road and dashed against D.C.M van being driven by the injured, resulting in injuries to him. Ex.A-1 is copy of F.I.R registered in connection with this accident by the police. Ex.A-1 was given by cleaner of D.C.M van and not by P.W- 1. Since P.W-1 suffered injuries very badly in the accident, he could not have gone to the police station for giving report. It is contended by the appellant’s counsel that the person who gave first information report to the police viz., cleaner of D.C.M. van was not examined. This is not a criminal case where F.I.R has to be proved by examining the author of it. Ex.A-1 is filed by the claimant only to prove the fact that the police have registered the case against oil tanker driver and not against himself who was driving the D.C.M van. There is positive evidence of P.W-1 before the lower Tribunal to the affect that the oil tanker came on wrong side and hit the D.C.M van. There is absolutely no contra evidence on behalf of the insurer who contested the case before the lower Tribunal. The insurer did not examine any eye witness or oil tanker driver to prove that oil tanker driver was not at fault or to prove that D.C.M van driver who is P.W-1 also contributed negligence for this accident. In the absence of any evidence before the lower Tribunal, the lower Tribunal was justified on facts to come to the conclusion that the oil tanker driver was at fault and was responsible for this accident. This Court on facts and having regard to evidence on record, agrees with the said finding of the lower Tribunal. 5) In the result, the appeal is dismissed with costs. _______________________________ SAMUDRALA GOVINDARAJULU, J December 07, 2010 ksh [1] AIR 2006 SC 1255