JUDGMENT :

1. The present appeals are arising out the common judgment and award dated 31.12.2009 passed by the Motor Accident Claims Tribunal (Aux.), Patan (hereinafter referred to as “the Tribunal”) in M.A.C.P. No.610 of 2002 (old M.A.C.P. No.416 of 1992) and M.A.C.P. No.606 of 2002 (old M.A.C.P. No.396 of 1992). The First Appeal No.2396 of 2010 is filed by the appellants – original claimants for enhancement and First Appeal No.3636 of 2011 is filed by the appellant – Oriental Insurance Company Limited.

2. Facts giving rise to the present appeals are that on 28.10.1991, Ratilalbhai Bhavsar (deceased) was travelling as pillion rider along with Chetankumar on his scooter bearing registration No.GAL-1024 from Naradipur to Kalol road, which was driven by Chetankumar and when they reached near Dhamasana Village, at that time, original opponent no.1 came on opposite direction driving his scooter bearing registration No.GAW-3252 in rash and negligent manner and in excessive speed, dashed on right side of the claimants, as a result of which Ratilalbhai sustained fatal injuries.

3. Heard learned counsel appearing for the appellants and learned counsel appearing for the respondent – Insurance Company.

4. Learned counsel appearing for the appellants submitted that the accident in question had taken place on 28.10.1991 between two vehicles and deceased was travelling as pillion rider on the scooter which was driven by appellant no.2 herein. He has submitted that the Tribunal has not considered the future loss of income according to the potential earning capacity of the deceased and has to consider the monthly income of deceased at Rs.5,000/- per month and potential earning capacity more than at Rs.10,000/- per month and the said income can be done on the basis that the deceased was educated person and was a Diploma Civil Engineer and working as contractor. He has submitted that the Tribunal has erred in awarding Rs.30,000/- each for loss of consortium and loss of estate instead of Rs.50,000 and has not granted compensation in form of conventional amount to the tune of Rs.70,000/- in accordance with the decision of the Hon’ble Supreme court in the case of Banglore Metropolitan Transport Corporation Vs. Padma, 2009 ACJ 1336 (SC). Learned counsel appearing for the appellants has submitted that in view of the aforesaid facts, the present appeal may be allowed and enhanced the amount of compensation awarded by the Tribunal, which is on lower side and the appeal filed by the Insurance Company may be dismissed.

4.1 The learned counsel appearing for the appellants has tendered the written submissions regarding negligence which reads as under.

The appellants state and submit that the accident in question has taken place on 28.10.1991 between the two vehicle i.e. scooters GAW – 3252 and GAL 1024. The deceased was travelling as pillion rider on the scooter number GAL 1024. The said scooter was driven by the son of the deceased namely Chetankumar. The learned Tribunal after considering the evidence on record come to the conclusion that both the vehicles are negligent to the extent of 50%-50%. son of the deceased also one of the claimant before the learned Tribunal.

It is submitted that the issue of the negligence which is decided by the learned Tribunal is on the wrong premise mainly on the ground that

(1) It is submitted that at the time of accident the deceased as well as son Chetan were injured and required to take immediate treatment before the hospital. At that time, the offending vehicle i.e. scooter being GAW – 3252 – driver Bhupatbhai lodge the FIR. On going through the same, it is crystal clear that the scooter number GAL 1024 was on correct side of the road. The accident taken place because of sole negligence on the part of the driver of Scooter Number GAW 3252.

(2) It is submitted that for the alleged accident the police authority has filed