The court upheld the finding of 20% contributory negligence attributed to the deceased and applied the principle of constructive res judicata, denying the claimants' challenge to this finding without prior appeals in related cases.

JUDGMENT :

(Maulik J. Shelat, J.)

1. Today, when the matter was called out, the learned advocates appearing for the respective parties, urged this Court to take up the matter for final hearing as according to them, the issue involved in the present appeal, does not require much deliberation as it is covered by various decisions of Hon’ble Supreme Court of India. So, with the consent of the learned advocates of the respective parties, the present appeal is taken up for final hearing.

2. Admit. Learned advocates for the respective parties waive service of notice of admission of present appeal. The presence of rest of respondents is not required for adjudication of the appeal as their interest is already protected by respective respondent insurance companies.

3. The present appeal is filed by the appellants (hereinafter referred to as “Original Claimants” for the sake of brevity) under Section 173 of the Motor Vehicle Act (hereinafter referred to as “the Act”), against the judgment and award dated 29.01.2018 passed by Motor Accident Claims Tribunal (Auxi.), Vadodara in Motor Accident Claim Petition No.690 of 1998.

Brief Facts of the Case

4. The brief facts of the case are as under:-

4.1 That on 14.02.1997, the deceased - Kamleshbhai Patel along with others, was going in a Maruti Van no.GJ-06-K-2252, which was driven by deceased – Kamleshbhai in moderate speed. When they reached near village Navapura, one truck bearing Registration no.GJ-1-V-4417 came and dashed with the said Maruti Van. The deceased - Kamleshbhai as well as other occupants of Maruti Van has sustained serious injuries but deceased - Kamleshbhai succumbed to such injuries.

4.2 The legal heirs of deceased - Kamleshbhai has preferred an application under Section 166 of the Motor Vehicles Act in Motor Accident Claim Petition No.690 of 1998, seeking compensation of Rs.26,00,000/- before Motor Accident Claims Tribunal against driver, owner and insurer of the Truck no.GJ-1-V- 4417 for death of deceased - Kamleshbhai, which was arising out of use of this motor vehicle.

4.3 The other occupants of Maruti Van no.GJ-06-K-2252, who have sustained injuries, appear to have independently preferred their respective claim petitions being Motor Accident Claim Petition Nos.691 of 1998, 692 of 1998 and 693 of 1998 before the very Tribunal against driver/owner/insurance company of aforesaid vehicles involved in the accident.

4.4 After appreciating the evidence on record, the learned Tribunal has found both the drivers negligent for causing the accident and thereby, held the driver of truck no.GJ-1-V-4417 80% negligent, whereas driver of Maruti Van was found 20% negligent i.e., deceased - Kamleshbhai.

4.5 So far as quantum of compensation is concerned, after considering the documentary evidence submitted by Claimants to prove the income of deceased - Kamleshbhai, the learned Tribunal has worked out compensation of Rs.10,62,600/-, out of which, a contributory negligence of deceased-Kamleshbhai @ 20% was deducted. Thus, the learned Tribunal has in all awarded Rs.8,49,500/- together with 9% interest thereon from the date of petition till realisation in favour of claimants to be recovered from original opponent nos.1, 2 and 3 i.e., respondent nos.1, 2 and 3 herein.

5. The claimants are not satisfied with the compensation awarded to them and also aggrieved by the holding 20% contributory negligence of the deceased - Kamleshbhai to the accident preferred this appeal.

Submission of the Appellants (Original Complainants)

6. Learned advocate for the Original Claimants, Mr. Karna H Dhomse, has vehemently submitted that the learned Tribunal has committed a gross error in holding deceased 20% negligent to the accident that too in absence of any contrary evidence led by opponents. He would submit that when the opponent no.1 - driver of the Truck, has not been examined before the learned Tribunal then an adverse inference ought to have been drawn against him. He would further submit that merely the fa