JUDGMENT :

NIRAL R. MEHTA, J.

1. The present First Appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed by the appellant – Insurance Co. (original opponent No.2) challenging, inter-alia, the judgment and award dated 7.3.2013, passed by the MAC Tribunal (Main), Rajkot in MAC Petition No.1401 of 2009, wherein the learned Tribunal has awarded a sum of Rs.2,85,300/- towards the compensation.

2. That on 23.9.2009, the deceased was driving Hero-Honda Motorcycle bearing No.GJ-3-CD-4356. That near village Ghuntu on Morbi-Halvad road, the Truck bearing No.GJ-3-W-9150 was parked on the road without any parking signal. Thus, the deceased dashed with the truck from behind and died. At the time of the death of the deceased, his age was 34 years and was earning Rs.3300/- per month by way grocery business. Thus, the respondents herein – original claimants have approached the learned Tribunal for compensation for the death of their brother, who was unmarried under Section 163-A of the MV Act.

3. Upon service of notice, the driver, though served, had chosen not to appear before the learned Tribunal. However, the appellant herein – Insurance Co. appeared and filed its written statement at Exh.14. The learned Tribunal, after having gone through the pleadings and the evidence on record, came to the conclusion that the claimants being legal representatives of the deceased, are entitled to the sum of Rs.2,80,800/- under the head of ‘loss of dependency’, considering the schedule. Further, a sum of Rs.4500/- also came to be awarded as per the schedule. Thus, total sum of Rs.2,85,300/- came to be awarded by the learned Tribunal.

4. Being aggrieved by the aforesaid, the appellant – Insurance Co. is before this Court by way of present First Appeal.

5. Mr.Dakshesh Mehta, learned counsel appearing for the appellant – Insurance Co., has submitted that the learned Tribunal has committed an error in not attributing contributory negligence to the deceased as well. It is further submitted that the motorcycle driven by the deceased had dashed with the truck in question, which was stationary on the road side and, therefore, the deceased himself was also negligent in driving the motorcycle.

5.1 It has been further contended by the learned advocate for the appellant that the claim petition is not maintainable, as has been filed by the brother of the deceased and, therefore, requested to allow the appeal by quashing and setting aside the judgment and award passed by the learned Tribunal.

6. Per contra, Mr.Nisarg Desai, learned counsel for Nanavati Associates for the respondents, submitted that the learned Tribunal was justified in awarding the compensation and thus, the appeal of the Insurance Co. be dismissed. He further submitted that since the claim petition was filed under Section 163-A of the MV Act, negligency on the part of insured cannot be gone into. Mr.Nisarg Desai, learned counsel, also submitted that the claimants are the real brothers of the deceased and they are living jointly. Thus, they are entitled to file the claim petition before the learned Tribunal in their capacity as legal representatives.

7. Having heard the learned counsel for the respective parties, in my view, the following two questions arise for consideration, viz., (i) Whether the claim petition at the instance of brothers in their capacity as legal representatives of the deceased, can be maintainable ? and (ii) Whether the learned Tribunal has erred in not considering the contributory negligence on the part of the deceased ?

8. In my view, before deciding the aforesaid two questions, it would be apt to consider the legal position settled by the Apex Court. Recently, the Apex Court has, in the case of N. Jayasree & Others v. Cholamandalam MS Genera