The main legal point established is the determination of liability in a motor vehicle accident and the erroneous deduction of compensation from the original claimant.

ORDER :

1. We have heard Mr. H.M. Shah, learned advocate on record for the appellants-original claimants, Mr. Rathin Raval, learned advocate on record for the respondent No. 3-Insurance Co. and Mr. Maghnani, learned advocate, who has appeared on behalf of the respondent Nos.1 and 2.

2. Present appeal is filed under Section 173 of the Motor Vehicles Act, 1988, at the instance of original claimants, who are aggrieved with the judgment and award dated 24.02.2023 rendered by the 6th Motor Accident Claims Tribunal at Khambhat in M.A.C.P. No. 92 of 2020 (Old M.A.C.P. No. 697 of 2015).

3. In nutshell, the case of the original claimants as contended before the Tribunal is as under:

3.1 On 14.10.2015, at around 9:00 a.m. in the morning, when the deceased Vaishaliben Miteshbhai Bhavsar, as a pillion rider was travelling with her husband on the scooter bearing registration No. GJ-23-AP-865 and after crossing railway, had proceeded towards Kansari, at that time, the opponent No. 1 Nathabhai Mepabhai Mori, who was driver of the offending truck bearing registration No. GJ-11-Z-5858, hit the vehicle driven by the claimant No. 1 from the back side. It is alleged that the accident occurred because of the excessive speed and negligent driving of the opponent No. 1 driver.

3.2 Because of the aforesaid accident, the deceased fell off from the scooter and came under the wheels of the said offending truck. The deceased was provided primary treatment at General Hospital and was thereafter referred to Zydus Hospital, Anand, the deceased succumbed to the injuries.

3.3 The claim petition being M.A.C.P. No. 697 of 2015 was preferred by the heirs and legal representatives of the deceased, which includes husband of the deceased viz. Miteshbhai Bhavsar and her children Prachiben and Sujal. In the aforesaid claim petition, Kanubhai Arjanbhai Madha was joined as opponent No. 2 being owner of the vehicle and New India Assurance Co. Ltd. was joined as opponent No. 3 being Insurance Co. of the offending vehicle. Initially, the National Insurance Co. was joined as opponent No. 4 being Insurance Co. of the vehicle of the ownership of original claimant, however, later on the said opponent was deleted from the array of the parties pursuant to the order passed by the Tribunal below Exhibit 37.

3.4 According to the original claimants, the deceased was aged about 39 years and was doing diamond business, thereby earning income of Rs. 5 Lakhs p.a. The original claimants have prayed for compensation of Rs. 1,08,00,000/- with interest @ 12% along with cost to be realized from the opponents.

3.5 The opponent No. 1 had chosen not to enter his appearance before the Tribunal. The opponent No. 2 had appeared through his advocate, however, had choose not to contest the claim petition by filing any of the written statement. The opponent No. 3 Insurance Co. had tendered their written statement at Exhibit 14. Apart from the denial of the averments made in the claim petition, the Insurance Co. had denied negligence on the part of the driver of the offending vehicle and their consequential liability to make payment towards any compensation to be determined in favour of the original claimants. The Tribunal upon consideration of the pleadings of the respective parties, has framed the following issues for determination:

1. Whether applicants proved that the deceased died due to accident arising out of use of motor vehicles involved in the accident?

2. What applicants are entitled to any compensation? If yes, what amount and from whom?

3. What order?

3.6 The Tribunal has considered the evidence led by the respective parties and by impugned judgment and award, had partly allowed the claim petition, thereby holding the applicants-children except original claimant No. 1, Miteshbhai-husband of the deceased as being treated as tort feasor, entitled to recover an amount of Rs. 12,36,098/- with interest @ 9% p.a. from the date of filing of the claim petition till actual realization and with proportionate