This appeal is directed against the judgment and award dated 3rd May 2013 passed in M.V.C.No.7450/2004 on the file of the III Additional Senior Civil Judge and M.A.C.T., Bangalore (SCCH18) (‘the Tribunal’ for short) whereby the claim petition of the appellants is dismissed.

2. By the impugned judgment, the jurisdictional Tribunal has rejected the petition filed by the claimants/appellants under Section 166 of the Motor Vehicles Act (‘the Act’ for brevity).

3. Succinctly stated, on 11.5.2001 one S. Gangadhara suffered grievous injury in a motor vehicle accident while proceeding on his Motor Cycle bearing registration No.KA03/W582 on Bangalore Hosur NH7 Road, towards Hosur. The rider of the offending motor cycle bearing registration No.TN29/Q2853 came in a high speed, rash and negligent manner from his behind and dashed to the rear portion of his motor cycle. Subsequently, on 3.5.2004, S. Gangadhara succumbed to the fatal injuries suffered during the said accident. During his life time, late Gangadhara had filed a petition seeking compensation in respect of the grievous injuries he had suffered before the very same Tribunal, which was registered in M.V.C.No.109/2002. On his death, the claimants herein prosecuted the said case as his Class I legal heirs and the said claim petition was allowed by awarding a compensation of Rs.5,05,000/- with interest @ 6% per annum under the heads of loss of estate, medical treatment, transportation of the dead body, funeral and obsequies expenses vide Award dated 27.07.2005. During the pendency of M.V.C.109/2002, the claimants preferred present claim petition seeking compensation under the heads of loss of dependency, loss of consortium and loss of love and affection. The Tribunal after holding an enquiry awarded a compensation of Rs.5,90,000/- vide Award dated 27.09.2007.

4. Aggrieved by the said Award, the Insurance Company preferred an appeal in M.F.A.No.6708/2008 before this Court questioning the maintainability of second claim petition. The claimants dissatisfied by the quantum of compensation filed Cross Objection to the same in Cr.Ob.No.43/2010. This Court by order dated 17th October 2012 remanded the matter with a direction to frame the issue on the point, whether the claim petition filed by the legal heirs after the death of S. Gangadhar was maintainable and to reconsider the matter afresh.

5. After remand, the Tribunal framed the following additional issue:

“Whether the petitioners prove that petition filed after death of Gangadhara is maintainable?

and answered the same in the negative and has rejected the petition, though it has quantified the compensation, for which the claimants are entitled at Rs.9,22,000/-. The Tribunal has observed that the claim petition is hit by Order II Rule 2 of CPC for omitting to seek compensation under the head of loss of dependency and loss of love and affection in the claim petition in M.V.C.No.109/2002.

6. Sri. N.S. Bhat, learned Counsel appearing for the appellants submits that, the Tribunal has admitted the fact that the death of S. Gangadhara was due to the accidental injuries he had suffered on 11.5.2001. It is also an admitted fact that in the previous petition in M.V.C.No.109/2002, they had not claimed compensation in respect of loss of dependency and loss of love and affection for which they are entitled to as the dependants/Class I legal heirs of deceased S. Gangadhara. It is permissible for them to claim compensation separately, in view of the judgment of this Court reported in ILR 1990 Kar 4300 (FB) in the matter of Kannamma vs. Deputy General Manager. The Tribunal has committed a serious error in not following the principles laid down in the said judgment. The judgment and award passed in M.V.C.No.109/2002 has become final. The entire facts as regards to occurrence of the incident on 11.05.2001, involvement of the Motor Cycle bearing registration No.TN29/Q2853 in the accident, injury suffered by S.Gangadhara during the accident, his death i