IMPORTANT POINT
The principle of res judicata cannot apply when parties in previous and current cases differ, and absence of the negligent party leads to sole negligence being attributed to them.

JUDGMENT :

PER : HONOURABLE MR. JUSTICE MAULIK J.SHELAT

1. The present appeal is filed by the insurance company under Section 173 of the Motor Vehicle Act (herein after referred to as ‘the MV Act’) against the Judgment and award dated 25.02.2019 passed by the Motor Accident Claims Tribunal (Main), Panchmahals at Godhra in Motor Accident Claims Petition (MACP) No. 928 of 2009.

1.1 Whereas, the original injured claimant, who had filed above said claim petition, has also filed cross – objection No.10 of 2021 in the present First Appeal. The injured claimant died during pendency of the present appeal on 25.12.2020, whose legal heirs are brought on record in appeal as well as cross objection. Nonetheless, hereinafter the parties will be referred as per their original position before the tribunal.

2. The short facts of the case appear to be as under;

2.1 On 27.02.2009, the injured claimant was riding Motorcycle bearing Registration No.GJ-9-KL-762 and Mr. Galabhai Manabhai Panda was pillion rider on the Motorcycle. His Motorcycle was dashed with a opposite vehicle i.e. Jeep bearing Registration No.GJ-17-C-7572 insured with insurance company (appellant herein), whereby both, rider and pillion rider of the Motorcycle have sustained injuries.

2.2 The claimant had received very serious injuries albeit died natural death during pendency of the present appeal. It was a case of original claimant that he was completely bedridden, as he has received brain injury causing intraparenchymal hemorrhage in the brain resulting in and irreversible brain damage, both organic and parenchymal resulting in incurable mental disease, producing permanent disability, which was assessed by doctor concerned as 100% on body as a whole.

2.3 Because of severe injuries sustained by the claimant, Claim Petition under Section 166 of the MV Act was filed and persuaded by his wife – Revaben as his next friend.

2.4 It appears that prior to the accident, the claimant was serving as an assistant teacher at Hareda Primary School and earning Rs.23,440/- p.m. at the time of accident. He was aged about 43 years. The claimant has prayed for a compensation of Rs.1,02,50,000/- for sustaining total permanent disability arising out of use of motor vehicle.

2.5 The claim petition was filed against driver, owner and insurance company of Jeep as well as owner and insurance company of Motorcycle. The insurer of both these vehicles appear to be common i.e. United India Insurance Company Ltd.

2.6 After service of notice, the opponents appeared before the tribunal and filed written statement. Nonetheless, none of the opponents have tendered their oral evidence in support of their submission. Even, original opponent No.3 being insurer of Jeep and opponent No.5 of Motorcycle did not call upon driver of Jeep or any other eyewitness to rebut allegation of sole negligence of driver of the Jeep.

3. Following documents are submitted by claimant in support of his case;