The court established the principle of res judicata and applied it to uphold the finding of sole negligence against the motorcycle driver.

JUDGMENT :

1. This appeal under Section 173 of the Motor Vehicles Act, 1988 (“The Act” for short) is filed by the original claimants as appellants challenging the judgment and award dated 4.8.2006, passed by The Motor Accident Claims Tribunal (Main), Patan in MACP No. 278 of 2002, wherein the Tribunal dismissed the claim petition filed by the original claimants holding that, as the driver of motorcycle was sole negligent for occurrence of the said accident, tort feasor cannot take advantage of his own wrong.

2. The facts in brief are as under:

2.1. That on 17.3.1991, Ambalal @ Rehmatkhan Rathod with his wife Madhuben and son Ranjeet were travelling on his Hero Honda Motorcycle No.G C N 6699 from Mehsana to Ahmedabad. Shri Ambalal @ Rehmatkhan Rathod (hereinafter referred to as “the deceased”) was driving the motorcycle and wife Madhuben and son Ranjeet were sitting as pillion rider. It is case of the original claimants that, at that time one Matador No.GJ 2 T 6396 came with full speed in rash and negligent manner and by coming towards wrong side dashed with Hero Honda Motorcycle from front, for which the driver lost control and fell down. All three -driver and two pillion riders, sustained grievous injuries succumbed to the same.

3. For the said accident, the legal heirs of deceased filed Claim Petition under Section 166 of the Act seeking compensation of Rs.5 lacs. It was case of the original claimants that accident occurred on account of negligence on part of driver of Matador. It was further the case of the original claimants that by doing masonry work, the deceased was earning Rs.3,000/- p.m.

Upon claim petition being filed, notices were issued. Insurance Company of Matador as well as Insurance Company of Motorcycle both filed their respective written statements. The Tribunal after hearing the parties and upon consideration of evidence on record held that the driver of motorcycle No.G C N 6699 was sole negligent for occurrence of the accident and, therefore, the claimants are not entitled for the claim as sought for. The Tribunal exonerated the Insurance Company of Matador as the driver of Motorcycle was held 100% negligent for the said accident.

4. Aggrieved by the dismissal of the claim petition, present appeal is filed by the original claimants as appellants.

5. Heard Mr. Ravindra R. Bharai for Mr. R.J.Goswami, learned advocate for the appellants (original claimants), Mr. Vibhuti Nanavati, learned advocate for the Insurance Company of the Motorcycle and Mr. Sunil Parikh, learned advocate for the Insurance Company of the Matador.

6. Appearing for the appellants, Mr. Bharai, submitted that the Tribunal is in error in not appreciating that the panchnama of scene of accident shows that the driver of Matador was also negligent for occurrence of the accident. Referring to the decision in Criminal Case No. 1912/1991 at Exh.36, he submitted that charge-sheet was issued against the driver of Matador which shows that the driver of Matador was also negligent to certain extent for occurrence of the accident. He, thus, submitted that the panchnama and the charge-sheet issued to the driver of the Matador supports the case of the appellants that the driver of Matador was also negligent for occurrence of the accident. He, thus, submitted that the judgment and award of the Tribunal dated 4.8.2006 being erroneous deserves to be quashed and set aside.

7. On the other hand, learned advocate Mr. Nanavati for the Insurance Company of the Motorcycle submitted that before the Tribunal three claim petitions were filed by the original claimants, (i) in the case of deceased Ambalal @ Rehmatkhan Rathod seeking compensation of Rs. 5 lacs (MACP No.278 of 2002, (ii) in case of deceased Madhuben, wife of deceased Ambalal @ Rehmatkhan Rathod seeking compensation of Rs. 3 lacs (MACP No. 277 of 2002 and (iii) in case of deceased Ranjeet son of deceased Ambalal @ Rehmatkhan Rathod seeking compensation of Rs.75,000/- (MACP No.276 of 2002). The Tribunal after hearin