JUDGMENT R.R. Tripathi, J. 1. ICICI Lombard General Insurance Company Ltd., is before this Court being aggrieved by judgment and award dated 29-12-2012 passed by the Motor Accident Claims Tribunal (Auxiliary) in M.A.C.P. No. 608 of 2010. Heard learned Advocate Ms. Grishma Ahuja for learned Advocate Ms. Vidhi J. Bhatt for the appellant. 2. The main contention raised in the First Appeal is about apportionment of the negligence between two drivers of two trucks which were involved in the vehicular accident. The facts are not in dispute. It is a fact that accident occurred between two trucks, bearing registration No. GJ-12-X-3345 and GJ-18-T-9779. It is also not in dispute that truck bearing registration No. GJ-12-X-3345, was coming on wrong side on double highway, dashed with truck bearing registration No. GJ-18-T-9779. In this regard, learned Advocate for the appellant-Insurance Company invited attention of the Court to the F.I.R. bearing No. CR-I-9/10 dated 30-1-2010, wherein helper of truck bearing registration No. GJ-18-T-9779 described the incident. The narration shows that driver of truck bearing registration No. GJ-18-T-9779 named Kamalnath Rambahadur along with conductor Nagendrakumar Sai was on the right side and when he reached near 'Ravapar' village, truck bearing registration No. GJ-12-X-3345 came from opposite side, though he was supposed to be on the other side of the road, despite efforts on the part of driver Kamalnath Rambahadur, who took his truck to the extreme left, accident could not be avoided and both the trucks collided with such impact that both the trucks were damaged to a great extent. The driver of truck bearing registration No. GJ-12-X-3345 named Megharam Dedaram Chaudhary sustained serious injuries and later on succumbed to the injuries sustained by him. 3. Learned Advocate for the appellant-Insurance Company invited attention of the Court to Para 9 of the judgment and award, wherein the Hon'ble Tribunal, without going into the relevant facts, only on the basis of the fact that two trucks had head-on collusion, held that the applicants will be entitled to receive compensation at the rate of 50% each from opponent Nos. 1 to 5. 3.1. Learned Advocate for the appellant-Insurance Company invited attention of the Court to Para 8 of the judgment and award, wherein the Hon'ble Tribunal had considered the relevant documentary evidence and only recorded a finding to the effect that the accident occurred on account of combined negligence of drivers of both the trucks. 1 to 5. 3.1. Learned Advocate for the appellant-Insurance Company invited attention of the Court to Para 8 of the judgment and award, wherein the Hon'ble Tribunal had considered the relevant documentary evidence and only recorded a finding to the effect that the accident occurred on account of combined negligence of drivers of both the trucks. In fact, the Hon'ble Tribunal was expected to make more detailed inquiry before observing in Para 9 that, "respondent Nos. 1 to 5 are jointly and severally liable and they have to share the amount of compensation in the ratio of 50%". 4. This Court is of the opinion that the Hon'ble Tribunal has committed an error in not giving sufficient weightage to the fact that truck bearing registration No. GJ-12-X-3345 was absolutely on wrong side, more particularly when the road was double road and truck bearing registration No. GJ-18-T-9779 was on its correct side. Besides that, the helper of the truck who lodged F.I.R. has deposed that, "driver of his truck had taken his truck to extreme left and still he could not avoid the accident". In that view of the matter, this Court is of the opinion that if both the truck drivers are held to be equally negligent, it will be doing injustice to the driver of the truck who was on right side of the road and he tried till the last minute to avoid the accident, but could not do so. 5. Learned Advocate Mr. Nanavati appearing for the Insurance Company of truck bearing registration No. GJ-12-X-3345 submitted that now that the driver of the said truck is not available for being examined or cross-examined, this Court should not interfere with the findings recorded by the Hon'ble Tribunal about the combine negligence of the two truck drivers and the apportionment of the said negligence. 6. This Court is of the opinion that approving the aforesaid finding of combine negligence and its apportionment will result into miscarriage of justice inasmuch as, truck driver who drove his truck on wrong side of the road and caused accident is not entitled for a lenient approach in the matter only because he lost his life in the said accident. This Court is of the opinion that approving the aforesaid finding of combine negligence and its apportionment will result into miscarriage of justice inasmuch as, truck driver who drove his truck on wrong side of the road and caused accident is not entitled for a lenient approach in the matter only because he lost his life in the said accident. The truck driver of truck bearing registration No. GJ-12-X-3345 has lost his life on account of his own negligence and while driving his truck in that negligent manner caused injuries to the helper and the driver of truck bearing registration GJ-18-T-9779. Therefore, taking into consideration the contents of the F.I.R. and the contents of the panchnama - Exh. 49, this Court is of the opinion that ratio of apportionment of negligence is required to be changed to 30 : 70. It will be 30% negligence on the part of the driver of truck bearing registration GJ-18-T-9779 as he could not successfully avoid accident and 70% negligence on the part of the driver of truck bearing registration No. GJ-12-X-3345, who was driving his truck absolutely on the wrong side of the double highway. 7. Learned Advocate Mr. Nanavati submitted that it has not come on record as to why the truck driver of truck bearing registration No. GJ-12-X-3345 was driving on the wrong side of the road. True it is that there is no evidence bringing on record as to why he was driving on the wrong side of the road, but certainly presumption could be only that he wanted to avoid long 'U' turn, if he wanted to go to his right side. That being so, ends of justice will be served only if apportionment is made in the ratio of 30 : 70. 8. With this change of ratio of apportionment of negligence, rest of the judgment and award is approved as it is. The other part of the findings recorded and directions given by the Hon'ble Tribunal are not disturbed by this Court. The First Appeal is disposed of accordingly. Registry is directed to send R. & P. back to the Hon'ble Tribunal immediately. 9. At this juncture, learned Advocate for the appellant-Insurance Company requested that the appellant should be refunded the excess amount deposited by it to honour the judgment and award of the Hon'ble Tribunal. 10. The request is granted. The First Appeal is disposed of accordingly. Registry is directed to send R. & P. back to the Hon'ble Tribunal immediately. 9. At this juncture, learned Advocate for the appellant-Insurance Company requested that the appellant should be refunded the excess amount deposited by it to honour the judgment and award of the Hon'ble Tribunal. 10. The request is granted. The Hon'ble Tribunal is directed to refund the excess amount deposited by the appellant-Insurance Company as early as possible but not later than four weeks from the date of receipt of this judgment and order. At this juncture, learned Advocate Mr. Kirtidev R. Dave requested that Insurance Company of truck bearing registration No. GJ-12-X-3345 be directed to deposit the amount which will be required to be deposited due to the variance of apportionment of negligence. Learned Advocate Mr. Nanavati submitted that he will inform the Insurance Company to deposit the additional amount which is required to be deposited on account of this variance at the earliest but not later than four weeks from the date of receipt of this judgment and order.