S.H. VORA, J.

Six Motor Accident Claim Petition Nos. 1085 to 1090 of 2004 were filed before the Motor Accident Claim Tribunal (Aux.), Sabarkantha at Himmatnagar, which arose out of an accident, which occurred on 3-4-2004 on account of collision between Tata Sumo bearing registration No. GJ-18 AA-5027 and other vehicle No. 407 resulting into personal injuries to four persons and three persons succumbed to the injuries. All the seven persons, who sustained injuries and met with the death, were travelling in the Tata Sumo at relevant time. The said accident took place when all these seven persons were going to Chanod from Ahmedabad in the said Tata Sumo car. The said Tata Sumo Jeep Car was driven by the father of the applicants of M.A.C.P. No. 1085 of 2004, namely, Mugatlal @ Mukeshlal Jaiswal. According to the case of the claimants, at that time, Tata Sumo Car was going on Ahmedabad-Nadiad on four lane Highway from the outskirt of village Dhamatvan, where driver Mugatlal @ Mukeshlal Jaiswal drove the said car in full speed negligently and collided the same with a divider of the road and as the vehicle was in full speed, it turned turtle and serious accident took place, wherein three persons lost their lives and four other sustained serious injuries.

2. While dealing with issue No.1, the Tribunal found that the accident occurred due to carelessness and negligent driving of the vehicle involved i.e. Tata Sumo Jeep Car and other vehicle. Upon analysis and appreciation of evidence, the Tribunal came to the conclusion that the accident has occurred due to negligency of drivers of both the vehicles, namely Tata Sumo Jeep Car and further due to negligency of the driver of the other vehicle bearing No. 407 which escaped from the place of accident. So, the Tribunal held 80% liability of the driver of Tata Sumo and 20% of the driver of one other unknown vehicle bearing No. 407 and thus, the Tribunal answered the said issue No. 1 accordingly.

3. Being aggrieved by and dissatisfied with the judgment and award dated 29-3-2007 passed by the Motor Accident Claim Tribunal (Aux.), Sabarkantha at Himmatnagar, the appellants preferred these appeals for enhancement of the claim under Sec. 173 of the Motor Vehicles Act.

4. Mr. Mansuri, learned Advocate appearing on behalf of the appellants took a serious objection for the deduction of amount of 20 % being negligency attributed to the driver of unknown vehicle No. 407. According to the submission of learned Advocate appearing on behalf of the appellants that all the persons who were traveling in the Tata Sumo Car suffered injuries without any negligency on their part, but as a result of combined negligency of two drivers of the collided vehicles. In his submissions, it is not a case of contributed negligency, but a case of composite negligency. In support of his submission, he has placed reliance on the decision rendered in, case of Kusumben V. Shah v. Arvindbhai N. Raval, reported in 2007 (1) GLH 601 and also in case of T.O. Anthony v. Karvarnan, reported in 2008 (3) SCC 748.

5. Per contra, Mr. Nagesh Sood, learned Advocate appearing on behalf of the respondents submitted that the Tribunal has rightly made apportion of negligency amongst two drivers of the offending vehicles, and therefore, there is no merit in these appeals preferred by the claimants, and therefore, urged to dismiss the same.

6. At the outset, it requires to be noted that the insurer of the offending Tata Sumo Car has not filed any appeal or cross appeal against the impugned award. Meaning thereby, the findings recorded by the Tribunal as far as negligency of the driver of both the vehicles are concerned, it reaches finality. The only question, which requires to be decided is whether it is a case of contributory negligent driving on the part of both the drivers or it is a case of composite negligency. The answer to the said question is straightway available in the decision cited by the learned Advocate appearing on behalf of the