JUDGMENT : Heard learned advocate Mr. Maulik Shelat for the appellant insurance company, learned advocate Mr. Punit Juneja for respondent No.1 claimant and learned advocate Mr. Tanmay Karia for respondent No.4 Oriental Insurance Company. Having regard to the issue raised, the appeal could be taken up for final disposal even in absence of other parties. 2. The appellant National Insurance Company Limited has preferred the present First Appeal under Section 173 of the Motor Vehicles Act, 1988 challenging the judgment and award dated 17th November, 2017 passed by the Motor Accident Claims Tribunal (Aux.) Court No.21, Ahmedabad, in Motor Accident Claim Petition No.292 of 2007. Thereby the claimant-respondent No.1 herein came to be awarded compensation of Rs.01,06,000/- with 9% interest from the date of claim petition till realization. 2.1 It was inter alia held and provided that the said awarded compensation would be payable in the ratio of 30:70 by opponent Nos.1 to 3 and opponent Nos.5 and 6 respectively. The present appellant-the National Insurance Company was opponent No.6 before the Tribunal, which was held liable to the extent of 70% to pay the compensation amount. The determination of extent of 30:70 liability as above was based on the attribution of negligence to the offending vehicles respectively registered with the insurance companies. 3. Looking at the details of the vehicular accident that took place on 02nd December, 2016, the applicant-claimant had been travelling as passenger in a bus bearing registration No.GJ-1-XX-8989 of Chirag Travels. The said luxury bus was going from Mumbai to Ahmedabad. On that date, it was about 2.00 a.m., as the bus was passing by Kasha Police Station limits in Dhamori village, 60 kms. away from Vapi, due to rash and negligent driving in excessive speed, the bus collided with rear part of the tanker No.GJ-8-U-2723. The applicant-claimant suffered four fracture injuries on his jaw and also on the other part of the body. He filed claim petition. The luxury bus was insured with respondent No.4 Oriental Insurance Company, whereas the tanker No.GJ-8-U-2723 was insured with the appellant herein-the National Insurance Company. The claims tribunal applied the relevant parameters and awarded the compensation as above. 4. The applicant-claimant suffered four fracture injuries on his jaw and also on the other part of the body. He filed claim petition. The luxury bus was insured with respondent No.4 Oriental Insurance Company, whereas the tanker No.GJ-8-U-2723 was insured with the appellant herein-the National Insurance Company. The claims tribunal applied the relevant parameters and awarded the compensation as above. 4. The only issue advanced in this Appeal by learned advocate for the appellant insurance company is about attribution of 70% negligence to the driving of the vehicle-tanker insured with the appellant, by submitting that the tanker-was not stationary and it was in motion with the other vehicle-bus dashed it from behind to cause the accident. It was submitted that the Tribunal failed to properly consider evidence on record on this score. Learned advocate for the appellant submitted that it was erroneous to attribute only 30% negligence to the luxury bus, which ought to have been more. 4.1 On the other hand, learned advocates for the other side defended the finding of the Tribunal on the count of negligence. 5. Since the only issue arising for consideration is limited to the above aspect and the extent, the manner and method of the occurrence of accident and the evidence in that regard may be deservedly focused. 5.1 The Tribunal has in the following observations extracted from its judgment ( page 8, para 14), as to how the accident took place, drawing an inference that the tanker was stationary when the luxury bus dashed with it from behind. “Looking to the panchnama and considering the damage caused to both the offending vehicles, it does not appear that the offending truck was moving and the luxury bus collided the truck from behind, but it can be inferred that the offending luxury bus driven by opponent No.1 collided with the stationary truck from behind and the accident happened. Considering the above facts and circumstances, if the driver of the luxury bus had applied brakes and driven the bus at moderate speed, the accident would not have happened. The oral and documentary evidence produced by the applicant on record of the petition, conclusively establish that the drivers of both the vehicles involved in the accident were responsible for the happening of the accident. The oral and documentary evidence produced by the applicant on record of the petition, conclusively establish that the drivers of both the vehicles involved in the accident were responsible for the happening of the accident. But looking to the manner, in which, the accident happened, the driver of the offending luxury bus i.e. opponent No.1 was responsible for the accident to the extent of 30% and the driver of the truck i.e. deleted opponent No.4 was responsible for the accident to the extent of 70%. Hence, Issue No.1 is answered accordingly.” 5.2 Thus the Tribunal inferred to hold that the tanker was stationary and was not in motion when the accident took place. Appreciating this finding of the Tribunal in light of the evidence of claimant Kunal Bharatbhai Shah (Exh.53) who was the passenger in the bus and who eye-witnessed the accident, deposed to state that at the time and place of accident, the driver of the bus drive the bus rashly and negligently and dashed the bus with the tanker No.GJ-8-U-2723, which was moving and was in motion ahead of the bus. 5.3 The Tribunal ought to have considered that there was no rebuttal to the above evidence of the claimant-passenger (Exh.53). Bharatbhai was an eye-witness and what was stated was the account of the passenger who had seen the tanker being in motion when luxury bus collided it in the rear portion of the tanker from behind. The evidence was in conformity with pleadings. The driver of the bus remained absent and did not enter the box. The reliance placed by the Tribunal on Panchnama could be said to be misplaced in view of above evidence which was quite believable and acceptable, as what gets recorded in the Panchnama would not speak of and would not reflect the actual happening, the live events and the position and condition of the vehicles involved in the accident at the relevant time. 5.4 In Raj Rani v. Oriental Insurance Company Limited [ (2009) 13 SCC 654 ], when the Supreme Court considered the extent of contributory negligence aspect, the facts were that the deceased-claimant had dashed his vehicle against a stationary truck. It was held in the facts of the case that some amount of negligence on part of the deceased could not be ruled out and that since the contributory negligence was required to be attributed, 50% was reasonable. It was held in the facts of the case that some amount of negligence on part of the deceased could not be ruled out and that since the contributory negligence was required to be attributed, 50% was reasonable. The view was taken by the Apex Court when the truck involved was in stationary condition. 5.5 From Raj Rani (supra), the following discussion and reasoning of the Supreme Court stand to facilitate the adjudication of this aspect and supports the view being taken by this Court. “So for as the issue of “contributory negligence” is concerned, we may notice that the tribunal has deducted 1/3rd from the total compensation on the ground that deceased had contributed to the accident. The same, we find, has been upheld by the High Court. This court in Usha Rajkhowa and Ors. v. Paramount Industries and Ors. [Civil Appeal No.1088 of 2009 (arising out of SLP (C) No.16647 of 2008)] discussed the issue of contributory negligence noticing, inter alia, earlier decisions on the same topic. It was held that : (SCC p. 75, para 20) “20. The question of contributory negligence on the part of the driver in case of collision was considered by this Court in Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak and Ors. reported in (2002) 6 SCC 455 . That was also a case of collusion in between a Car and a truck. It was observed in Para 8: ‘8. The question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as 'negligence'. Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence", it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an author of his own wrong”.” (Para 17) 5.6 It was then stated, “The principle of 50:50 in cases of contributory negligence has been discussed and applied in many cases before this court. In Sri Krishna Vishweshwar Hede v. The General Manager, K.S.R.T.C. ( 2008 ACJ 1617 ), this court upheld the judgment of the Tribunal assessing the ratio of liability at 50:50 in view of the fact that there was contributory negligence on the part of the appellant and fixed the responsibility for the accident in the ratio of 50:50 on the driver of the bus and the appellant.” (Para 18) 5.7 The Apex court observed, “In this case, the truck was stationary. Some amount of negligence on the part of the deceased cannot be ruled out. Hence in the insistent case, we find that there was contributory negligence on the part of the deceased and accordingly the claimant was entitled to only 50% of the total amount of loss of dependency.” (Para 19) 5.8 In wake of above position of facts, evidence and law emerging, the Tribunal misdirected itself and erred in attributing only 30% negligence to the driver of the bus and 70% negligence to the tanker/truck. In the facts and circumstances of the case, the Tribunal ought to have held that both the vehicles were negligent in equal proportion. 5.9 It is hereby held that driver of the luxury bus and the driver of the truck/tanker were negligent to the extent of 50:50 and the appellant insurance company with which the truck/tanker was insured would share its liability to the said extent, whereas the rest of 50% liability would be of the other insurance company-respondent No.4 herein. 6. Having held and declared as above, as a consequence, it is provided and directed that since the appellant insurance company deposited the entire awarded amount with the Tribunal in view of the order passed on 06th July, 2018 by this Court in the Appeal and Civil Application No.1 of 2018, the appellant shall be entitled to be refunded 50% of the total amount with proportionate cost and interest. The claimant shall be entitled to recover the balance amount with proportionate cost and interest from respondent No.4-the other insurance company-the Oriental Insurance Company. 7. The impugned judgment and award of the Tribunal shall stand modified to the above extent. The appeal is allowed in part in the aforesaid terms and to the extent provided. Registry shall send back the Record and Proceedings to the Tribunal concerned. 7. The impugned judgment and award of the Tribunal shall stand modified to the above extent. The appeal is allowed in part in the aforesaid terms and to the extent provided. Registry shall send back the Record and Proceedings to the Tribunal concerned. ORDER IN CIVIL APPLICATION In view of disposal of the main Appeal, the Civil Application would not survive for further consideration. The same is accordingly disposed of. Rule stands discharged subject to the order and directions issued in the judgment in the First Appeal.