JUDGMENT : J.C. DOSHI, J. 1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant – original claimant being aggrieved and dissatisfied with the judgment and award dated 19.06.2009 passed by the Motor Accident Claims Tribunal, Jamnagar in Motor Accident Claim Petition No.876 of 1998. 2. Brief facts of the case are as under: 2.1 On 03.05.1998, the claimants were going in their Maruti Zen Car No.GJ-10-F-2420 and when they reached place of accident, one Truck No.GJ-10-T-2523 came in rash and negligent manner and dashed the Car. As result, the claimants received injuries. Claim petition filed by the claimant was partly allowed by the learned Tribunal. The claimant has also prayed for damage caused to the Maruti Car in tune of Rs.4,00,000/- with interest and cost. Learned Tribunal by impugned judgment and award dated 19.06.2009 granted Rs.54,500/- with 9% interest from the date of filing of petition. Being aggrieved by the said order, the appellant / claimant has filed present appeal. 3. Learned advocate Mr.Premal Rachh for the appellant / claimant assailing the impugned judgment and award mainly on the ground that learned Tribunal has assessed negligence of the truck 100% and held sole negligent in other group of matters arising from same road accident. However, in the present case, learned Tribunal apportioned contributory negligence amongst driver of Maruti Zen and driver of Truck in equal proportion. He would submit that there cannot be two different kind of finding on the contributory negligence arising from selfsame road accident. He would submit that learned Tribunal erred in holding driver of Maruti Zen car 50% negligence in causing road accident. Learned advocate Mr.Rachh referred to para 96 and 97 of the impugned judgment to submit that learned Tribunal in other group of matters has fasten sole liability on truck driver. He would further refer to para 100 of impugned judgment and submit that learned Tribunal took different view so far as present MACP is concerned, whereby for no reasons learned Tribunal has held driver of Maruti Zen car negligent upto to 50%. Therefore, the finding arrived by learned Tribunal is erroneous for earmarking contributory negligence of driver of Maruti car to 50% and deducting the amount of compensation equal to said negligence and same may be quashed and set aside by allowing the appeal. 3.1. Therefore, the finding arrived by learned Tribunal is erroneous for earmarking contributory negligence of driver of Maruti car to 50% and deducting the amount of compensation equal to said negligence and same may be quashed and set aside by allowing the appeal. 3.1. Second limb of submission of learned advocate Mr.Rachh is that learned Tribunal has committed serious error in discarding Surveyor Report at Exh.188 which has assessed damage to the tune of Rs.2,83,000/- on the ground that surveyor has not been examined by the claimant. He would further submit that view of learned Tribunal is contrary to settled principle of law. Learned Tribunal instead of relying upon Surveyor Report at Exh.188 referred to photocopy of Panchanama at Exh.149 and believed the same assessing damage to the vehicle even without even examining panchas. Learned advocate Mr.Rachhh would submit that Surveyor report at Exh.188 has not been challenged by Insurance Company by leading cogent evidence. In such circumstances, denial to accept surveyor report is inappropriate view. Learned advocate Mr.Rachh would further submit that by accepting evidentory value of panchnama higher than surveyor report by learned Tribunal has cauterize principle of just and fair compensation. 3.2. Learned advocate Mr.Rachh submitted that surveyor report would not be sacrosanct but if no reliable evidence is produced on record to rebut contents of survey report, same has to be believed by learned Tribunal. Learned advocate Mr.Rachh relied on judgment of Hon'ble Apex Court in the case of National Insurance Company Ltd. v/s. Hareshwar Enterprises Pvt. Ltd. [ 2021 (9) Scale 619 ]. 3.3. Upon above submissions, it is submitted to allow the appeal and enhance compensation for damages caused to the Maruti Car. 4. Per contra, learned advocate Mr.Shah for Insurance company supported the impugned judgment and while distinguishing judgment of Hon'ble Apex Court in the case of Hareshwar Enterprises (supra) relied by learned advocate Mr.Rachh for the appellant, he would submit that it is case where owner of godown has carried out survey on his own and Insurance Company did not accept survey report and while dealing with application under the Consumer Protection Act, the Hon'ble Apex Court passed the judgment and held that surveyor report to be accepted in absence of rebuttal evidence. He submits that this judgment would not be helpful to the appellant as claimant is seeking compensation from the vehicle other than vehicle he has owned. He submits that this judgment would not be helpful to the appellant as claimant is seeking compensation from the vehicle other than vehicle he has owned. In other words, he cannot claim compensation in capacity of third party. It is submitted that report of Surveyor produced at Exh.188 is not worthy of belief and it cannot treated as gospel truth. It is submitted that learned Tribunal has rightly taken panchnama of place to assess damages to the vehicle. Therefore, no error is committed by learned Tribunal. 4.1. Upon above submissions, it is submitted to dismiss the appeal. 5. At the outset, let refer para 95 and 96 of impugned judgment (it is in Gujarat language, but for better understanding it is translated in English) which is as under :- "95. As discussed earlier in detail in this judgment, though the truck bearing registration No.GJ-10-T-2523 and the Maruti Zen car bearing registration No.GJ-10-F- 2420 involved in the accident have collided head-on, the competent Court has, by examining the case against both the drivers on merits, acquitted Hiren Ishwarlal Joishar, the applicant in Claim Petition No.849/1998 and the driver of Maruti Zen car, whereas sentenced and fined the driver of truck bearing registration No.GJ-10-T-2523 after he pleaded guilty. Thus, only the truck driver has been convicted for this accident and I have held in the earlier discussion that the present accident occurred due to his negligent and reckless driving. Shri S. K. Rachchh, Ld. Advocate for the applicants has referred before me a judgment in the case of Oriental Insurance Co. Limited v. K. Balasubramanian reported in 2008 ACJ 2553 . It is held in the said judgment that judgments in the criminal cases are not binding on the Civil Courts or Motor Accident Claim Tribunals, but when an accused pleads guilty and is convicted, the judgment of the Criminal Court becomes admissible in evidence, not only as a judgment of the Court, but also as a document containing an admission. Thus, under the circumstances when the truck driver of the respondent No.1 has pleaded guilty and been sentenced by the Criminal Court, I accept the argument of Shri S. K. Rachchh, Ld. Advocate for the applicant that the present accident has occurred due to negligence of only the driver of the truck involved in the accident and it was his clear negligence. 96. Advocate for the applicant that the present accident has occurred due to negligence of only the driver of the truck involved in the accident and it was his clear negligence. 96. The primary liability of paying the compensation lies upon the drivers and the owners of the vehicles causing accident. Thus, the liability of paying the compensation lies upon the truck driver, the truck owner, the driver of the Maruti Zen and the owner of the Maruti Zen. But, as I discussed earlier, no negligence appears on the part of the driver of the Maruti Zen and therefore, the driver and the owner of the Maruti Zen are not liable to pay the compensation. Therefore, only the driver and the owner of the truck bearing registration No.GJ-10-T-2523 involved in the accident are liable to pay the compensation." 6. I may also refer para 99 and 100 of impugned judgment, whereby, learned Tribunal contributed 50% negligence to Maruti car (it is also in Gujarat language, but for better understanding it is translated in English) is as under :- "99. Now, considering as to which insurance company is liable to pay what percentage of the compensation in Accident Claim Petition No.876/1998, the truck and the Maruti car have collided head-on. Thus, I hold that the insurance companies of both the vehicles are liable to pay 50%-50% of the compensation. 100. As I have discussed in detail earlier, the insurance company of the Maruti Zen car is not liable to pay the compensation, because I have earlier held that no insurance policy of the Maruti Zen car was in existence on the date of the accident. Eliminating the 50% liability of the insurance company of the Maruti Zen car, I hold that the insurance company of the truck is liable to pay 50% of the compensation. The applicant of Petition No.876/1998 is entitled to receive Rs.54,500/-, the respective share amount of the owner and the insurance company of the truck bearing registration No.GJ-10-T-2523 involved in the accident, that being 50% of Rs.1,09,000/-, the amount of damage caused to the Maruti Zen car as the compensation for the accident in accordance with the earlier discussion. The applicant of Petition No.876/1998 is entitled to receive Rs.54,500/-, the respective share amount of the owner and the insurance company of the truck bearing registration No.GJ-10-T-2523 involved in the accident, that being 50% of Rs.1,09,000/-, the amount of damage caused to the Maruti Zen car as the compensation for the accident in accordance with the earlier discussion. Considering the above discussion in detail made by me, as the present accident has occurred due to negligence and carelessness of the driver of the truck involved in the accident and the applicant has sustained injury and his vehicle has been damaged in the said accident, I hold that the applicants are entitled to receive the amount as an compensation from the respondents as earlier discussed in detail by me." 7. From the plain reading of finding arrived by learned Tribunal, it appears that learned Tribunal has committed error. There cannot be two separate set of negligence for same road accident. Learned Tribunal has assessed truck driver 100% negligence in rest of the claim petition, whereas it has changed said proportion qua claim petition No.876 of 1998 and assessed 50% negligence to both the drivers i.e. truck driver and Maruti car driver. Since finding of learned Tribunal is self contradictory, apportion of 50% negligent each to Maruti car driver and truck driver deserves to be set aside and accordingly, it is set aside. Truck driver is held 100% negligence in causing road accident even in claim petition No.876 of 1998; owner and insurer of the truck are therefore, liable to pay compensation for and on behalf of truck. 8. Next question arise that whether learned Tribunal has assessed compensation on lower side. Apt to note that learned Tribunal first of all discarded Exh.188 (surveyor report) and believed Exh.149 (panchnama) to assess damage caused to the Maruti car. According to panchnama, Maruti car has suffered damage of Rs.80,000/-. Perusal of panchnama demonstrate that on his own, learned Tribunal doubted the amount stated in the panchanama and assessed Rs.1,60,000/- as damages caused to the Maruti Car. It appears that learned Tribunal instead of assessing evidence on record played role of surveyor and assessed damage on its own. The law has not permitted the learned Tribunal to assess damage on its own whims and surmises. Exh.188 is Survey Report by Mr. Dilip N.Shah. He is DE(Mech), PD( Auto) FIISA, AMIAE. It appears that learned Tribunal instead of assessing evidence on record played role of surveyor and assessed damage on its own. The law has not permitted the learned Tribunal to assess damage on its own whims and surmises. Exh.188 is Survey Report by Mr. Dilip N.Shah. He is DE(Mech), PD( Auto) FIISA, AMIAE. He is having License No.SLA 2679. He has conducted thorough survey of damage of Maruti car and assessed loss as under :- "Report No.12282/TP/98 Vehicle No.GJ-10-F-2420 Total loss Basis Looking to the damages and conditions of the vehicle, I am of the opinion that it is not advisible to repair the vehicle even after repair, it may not come in as good as condition as specify by the manufacturer. So please considered as a total loss vehicle and for that my finding are as under :- Total loss basis Purchase price of vehicle as per the invoice No.5502-50183 dated 7.5.97 Rs.3,33,940/- Life time lumsum taxation (vide recpt No.6794741 dated 31.5.97) Rs.14,000/- Octroi receipt No.362941 dated 10.05.97 Rs.10,018/- Tap recorder and seats cover, and other internal extra fittings. Rs.20,042/- Purchase price paid Rs.3,78,000/- Less : One year depreciation value Rs.(-) 45,000/- Market value in present day price of 1997 model Maruti zen with extra fitting is workout. Rs.3,33,000/- Salvage Value :- In my opinion salvage value of accident affected vehicle is considered after verify the damages to the vehicle in accident complete body shell, engine assembly, gear box, air condition unit, steering unit, dash board, blower, seats found badly damaged salvage buyers may Rs. 57,000/- (Reverable amount on selling the vehicle with valid RTP papers Total Rs.2,76,000/- Financial loss to the applicant may come to Rs.2,76,000/-" 9. Hon'ble Apex Court in the case of Hareshwar Enterprises (supra), in para 11 has held as under :- "11. In the said decision, it is no doubt held that though the assessment of loss by an approved surveyor is a prerequisite for payment or settlement of the claim, the surveyor report is not the last and final word. It is not that sacrosanct that it cannot be departed from and it is not conclusive. The approved surveyor’s report may be the basis or foundation for settlement of a claim by the insurer in respect of loss suffered by insured but such report is neither binding upon the insurer nor insured. It is not that sacrosanct that it cannot be departed from and it is not conclusive. The approved surveyor’s report may be the basis or foundation for settlement of a claim by the insurer in respect of loss suffered by insured but such report is neither binding upon the insurer nor insured. On the said proposition, we are certain that there can be no quarrel. The surveyor’s report certainly can be taken note as a piece of evidence until more reliable evidence is brought on record to rebut the contents of the surveyor’s report." 10. On going through Record and Proceedings of the claim petition, at nowhere it is found that Insurance Company has led evidence to discard Exh.188 and to prove that surveyor report is inconclusive. It is argued by learned advocate Mr.Shah for the Insurance Company that since in the present case, owner of Maruti car who is claimant before the learned Tribunal was third party, the Insurance Company of the truck did not get chance to survey damages caused to Maruti car and to bring such evidence on record. True it may be, but the Officer of Insurance Company could enter into witness box atleast to explain some inconclusive in the survey report, as officer can be considered as expert on this aspect. 11. In view of above, survey report produced at Exh.188 is found reliable evidence in absence of any rebuttal evidence on record and learned Tribunal was required to grant compensation based on that report. 12. In wake of above reasons, the appeal deserves consideration. Finding of learned Tribunal so far as attributing 50% negligence to the claimant deserves to be set aside and accordingly, it is set aside. Compensation for damage of Maruti car is required to be granted as per survey report i.e. Rs.2,76,000/-. The appeal is partly allowed. Impugned judgment and award is modified to the extent by granting compensation of Rs.2,76,000/- to the claimant with 7.5% interest from the date of petition till realization. 13. The Insurance Company is directed to deposit the enhanced amount with interest as stated herein above within a period of six weeks from the date of receipt of this order. 14. Impugned judgment and award is modified to the extent by granting compensation of Rs.2,76,000/- to the claimant with 7.5% interest from the date of petition till realization. 13. The Insurance Company is directed to deposit the enhanced amount with interest as stated herein above within a period of six weeks from the date of receipt of this order. 14. The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimants, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure. 15. While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law. 16. Record and proceedings be sent back to the concerned Tribunal, forthwith.