JUDGMENT :

1. The present appeal is filed by the original claimants under Section 173 of the Motor Vehicles Act seeking enhancement of the claim which was partly allowed by the learned Motor Accident Claims Tribunal, Surat for an amount of Rs.1,66,000/- with 9% interest and costs by the impugned judgment and award dated 5.5.2009 passed in MACP No.9 of 1987. By the said judgment and award the Tribunal has exonerated respondent no.2- Insurance Company and has held respondent no.3 the owner of the offending vehicle liable towards the aforesaid award.

2.0. The facts in nutshell as emerges from the record of the appeal are as under:

2.1. The deceased viz. Vitthalbhai Somabhai who was son of appellant no.1 (expired pending the claim petition deleted) and the brother of the appellant no.2 along with one Vinubhai were walking on the footpath as pedestrian on 14.6.1986. Suddenly one Luxury Bus bearing registration No. GTK 3001 came in full speed being driven by the respondent no.1 in rash and negligent manner and dashed with the deceased from behind. Deceased received serious injuries and died on the spot.

2.2. The claimants being heirs and legal representatives of deceased preferred Claim Petition before the Motor Accident Claims Tribunal, Surat, which was registered as MACP No.9 of 1987. The Claim Petition was filed under Section 166 of the Motor Vehicles Act seeking amount of compensation of Rs.2 lakhs with interest and costs. The Claim Petition was filed against the respondent no.1 who was driver of the offending Luxury Bus, opponent no.2 being the Insurance Company and opponent no.3 who was the owner of the Luxury Bus were joined as party opponents.

2.3. The opponent nos. 1 and 3 were duly served, however they chose not to appear before the Tribunal and opponent no.2- Insurance Company was represented through their lawyer. The Insurance Company had filed written statement vide Exh.63 mainly contending that the claimants are not entitled to realize the compensation from them.

2.4. The Tribunal after considering the rival contentions of the parties, had framed the issues at Exh.53. The same are reproduced as under:

“1. Is it proved that applicant sustained injuries and died due to rash and/or negligent driving of the driver of vehicle involved in the accident, as alleged ?

2. Whether the claimant/s is/are entitled to get compensation ? If yes what amount?

3. What order and from whom?”

After considering the evidence on record, the Tribunal proceeded to answer those issues. Ultimately, the Tribunal holding the driver of the vehicle being negligent, held opponent nos. 1 and 3 jointly and severely liable and awarding compensation of an amount of Rs.1,66,000/- to be realized from the opponent 3 only. At the same time, the Tribunal exonerated opponent no.2- Insurance Company. The sole reason being that the policy particulars were not brought on record by the original claimants.

2.5. The claimants being aggrieved and dissatisfied with the aforesaid conclusion of the Tribunal as well as compensation awarded by the Tribunal, has approached this Court by way of present appeal.

3. This Court by order dated 26.08.2009 has admitted this appeal. Rule has remained unserved for original opponent no.1- driver of the offending vehicle. The report of service of notice qua respondent no.3 reveals that the original opponent no.3 – owner of the vehicle has expired. Ms. Karuna Rahevar, learned advocate has appeared on behalf of the respondent no.2- Insurance Company. The matter was listed for final hearing and on various occasions matter was adjourned directing the learned advocate for the appellants- original claimants to take necessary steps qua the unserved respondent. The learned advocate had failed to take necessary steps. Considering the fact that the matter relates to the accident of year 1986, the appeal was peremptorily heard with the assistance of the