JUDGMENT : M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Auxi.), at Anjar, District Kutch (hereinafter referred to as "Tribunal") in Motor Accident Claim Petition No.44/2015 insofar as holding the original opponent No.1-driver of the Eicher Matador No. GJ03Y8206 sole negligent for the accident, original opponent No.3-insurer of the Eicher Matador involved in the accident-United India Insurance Co. Ltd. has preferred the present First Appeal. 2. At the outset it is required to be noted that the impugned judgment and award passed by the learned Tribunal is assailed insofar as holding the original opponent No.1-driver of Eicher Matador sole negligent for the accident. 3. Shri Maulik Shelat, learned advocate appearing on behalf of the appellant-insurance company has vehemently submitted that in the facts and circumstances of the case more particularly from the panchnama produced at Exh.34, it has come on record that there was a head on collision between Alto Car No.GJ12P4511 in which the original injured claimant was traveling and Eicher Matadar No.GJ03Y8206 and therefore, the driver of both the vehicles are required to be held contributory negligent to the extent of 50%. In support of his above submission, Shri Shelat, learned advocate appearing on behalf of the appellant-insurance company has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Bijoy Kumar Dugar v. Bidya Dhar Dutta & Others reported in (2006)3 SCC 242 . Relying upon the aforesaid decision of the Hon'ble Supreme Court more particularly para 12 of the said decision, Shri Shelat, learned advocate appearing on behalf of the appellant has submitted that in all cases where there is a head on collision, driver of both the vehicles involved in the accident are required to be held contributory negligent to the extent of 50% and more particularly when both the vehicles are found on the middle of the road. No other submissions have been made. 4. No other submissions have been made. 4. Shri Hiren Modi, learned advocate appearing on behalf of the respondent-original injured claimant has submitted that in the facts and circumstances of the case more particularly considering the deposition of the injured claimant who was traveling in the Alto car and who was also an eyewitness to the accident and considering the fact that after the investigation the driver of Eicher Matador has been charge-sheeted and considering the fact that after the accident the driver of the Eicher Matador ran away and in fact thereafter also he did not step into the witness box and therefore, adverse inference was required to be drawn against him, the learned Tribunal has rightly held the driver of the Eicher Matador sole negligent for the accident. 4.1. Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Bijoy Kumar Dugar (supra) by the learned advocate appearing on behalf of the appellant is concerned, it is submitted by Shri Modi, learned advocate appearing on behalf of the original injured claimant that on facts the said decision shall not be applicable to the facts of the case on hand. It is submitted that in the case before the Hon'ble Supreme Court, it was found that despite the fact that the driver of the car saw that the vehicle coming from the opposite side was coming in a zigzag manner and at abnormal speed, no further due care was taken by him to avoid head on collision. It is submitted that considering the aforesaid facts the Hon'ble Supreme Court observed and held driver of both the vehicles involved in the accident contributory negligent to the extent of 50%. It is submitted that in the aforesaid decision there is no actual proposition of law laid down by the Hon'ble Supreme Court that in each and every case whenever there is a head on collision between two vehicles, driver of both the vehicles are required to be held contributory negligent to the extent of 50%. It is submitted that in the aforesaid decision there is no actual proposition of law laid down by the Hon'ble Supreme Court that in each and every case whenever there is a head on collision between two vehicles, driver of both the vehicles are required to be held contributory negligent to the extent of 50%. It is submitted that aspect of contributory negligence is required to be considered considering the facts of each case and evidence on record and there cannot be any straitjacket formula that in each and ever case whenever there is a head on collision, driver of both the vehicles are required to be held contributory negligent to the extent of 50%. 4.2. It is further submitted by Shri Modi, learned advocate appearing on behalf of the original claimant that even otherwise in the present case so far as the original claimant is concerned, it will be a case of composite negligence and therefore, he can recover the amount of compensation from the insurance company of either of the vehicles involved in the accident. It is submitted that therefore so far as the claimant is concerned, even the driver of the Alto Car is held to be contributory negligent to same accident, in that case also, so far as the claimant is concerned, as it will be a composite negligence and therefore, the impugned judgment and award passed by the learned Tribunal is not required to be interfered with so far as the claimant is concerned as, in case of composite negligence, he can recover the compensation from owner and insurance company of any of the vehicle involved in the accident irrespective of finding on the contributory negligence. Making above submissions, it is requested to dismiss the present First Appeal. 5. Heard learned advocates appearing for respective parties at length. We have perused the impugned judgment and award passed by the learned Tribunal and more particularly the finding recorded by the learned Tribunal while holding the original opponent No.1-driver of Eicher Matador sole negligent for the accident. We have re-appreciated the entire evidence on record more particularly the deposition of the injured claimant who as such is also eyewitness to the accident as he was traveling in the Alto Car and other documentary evidences on record more particularly the FIR filed against the driver of the Eicher Matador and the panchnama (Exh.34). 5.1. We have re-appreciated the entire evidence on record more particularly the deposition of the injured claimant who as such is also eyewitness to the accident as he was traveling in the Alto Car and other documentary evidences on record more particularly the FIR filed against the driver of the Eicher Matador and the panchnama (Exh.34). 5.1. On appreciation of evidence more particularly the deposition of the injured eyewitness-claimant and considering the fact that FIR came to be filed against the original opponent No.1-driver of the Eicher Matador in which it is specifically alleged that he was rash and negligent due to which the accident took place and considering the fact that subsequently after investigation he has been charge-sheeted and considering the fact that the original opponent No.1-driver of the Eicher Matador who can be said to be the best witness has not stepped into the witness box and therefore, adverse inference is required to be drawn, the learned Tribunal has, on appreciation of evidence, held the original opponent No.1-driver of Eicher Matador sole negligent for the accident. 5.2. It is the case on behalf of the appellant-insurance company that as there is a head on collision between two vehicles, driver of both the vehicles are required to be held contributory negligent to the extent of 50%. In support of his above submission, Shri Shelat, learned advocate appearing on behalf of the appellant-insurance company has relied upon the decision of the Hon'ble Supreme Court in the case of Bijoy Kumar Dugar (supra). However, on considering the facts before the Hon'ble Supreme Court in the case of Bijoy Kumar Dugar (supra), we are of the opinion that the decision of the Hon'ble Supreme Court in the case of Bijoy Kumar Dugar (supra) shall not be applicable to the facts of the case on hand and/or the same shall not be of any assistance to the appellant in the facts and circumstances of the case. In the case before the Hon'ble Supreme Court, on appreciation of evidence, it was found that the driver of the car though he saw that the vehicle coming from the opposite side i.e. bus was coming in an abnormal speed and zigzag manner, no due care was taken by him and/or no precaution was taken by him to avoid the head on collision. After giving such a finding the Hon'ble Supreme Court thereafter has held the driver of both the vehicles contributory negligent to the extent of 50%. On considering the decision of the Hon'ble Supreme Court in the case of Bijoy Kumar Dugar (supra), it cannot be said that the Hon'ble Supreme Court has in the said decision has laid the absolute proposition of law that in all the cases where there is a head on collision, driver of both the vehicles are required to be held contributory to the extent of 50%. The factum of contributory negligence will depend upon the facts of each case and the evidence on record. There cannot be any straitjacket formula that in each and every case where there is a head on collision, driver of both the vehicles are required to be held contributory negligent to the extent of 50%. What is required to be considered is whether the driver of another vehicle had taken due care and precaution to avoid head on collision or not. In the present case from the panchnama it appears that even the driver of the Alto Car applied brake to the extent of 25 feet and the original opponent No.1-driver of the Eicher Matador did not apply any brake. Thus, as such the driver of the Alto Car took due care and precaution to avoid head on collision by applying brake to the extent of 25 feet. Under the circumstances and in the facts and circumstances of the case more particularly the deposition of the injured eyewitness-original claimant, who had specifically stated that the driver of the Eicher Matador was rash and negligent and on appreciation of his evidence and coupled with the fact that after the accident the driver of the Eicher Matador ran away and even thereafter also he did not step into the witness box to explain the manner in which the accident had taken place and considering the fact that the driver of the Eicher Matador has been charge-sheeted after investigation, in the facts and circumstances of the case, it cannot be said that the learned Tribunal has committed any error in holding the driver of the Eicher Matador sole negligent for the accident. As observed herein above, the driver of the Eicher Matador, who can be said to be the best witness to explain the accident, has not stepped into the witness box. As observed herein above, the driver of the Eicher Matador, who can be said to be the best witness to explain the accident, has not stepped into the witness box. Under the circumstances, even adverse inference is required to be drawn against him. 5.3. Considering the aforesaid facts and circumstances of the case, we are in complete agreement with the view taken by the learned Tribunal holding the original opponent No.1-driver of Eicher Matador sole negligent for the accident. We see no reason to interfere with the same in exercise of appellate jurisdiction. 6. In view of the above and for the reasons stated above, present First Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed. No costs. Record & Proceedings of the case be sent back to the learned Tribunal forthwith. 7. Civil Application No.9204/2016 8. In view of dismissal of main First Appeal, Civil Application No.9204/2016 also stands dismissed.