JUDGMENT :

NISHA M. THAKORE, J.

R/FIRST APPEAL 1234 of 2015 :-

1. The present appeal is filed at the instance of the appellant - insurance company under Section 173 of the Motor Vehicles Act, 1988, being aggrieved and dissatisfied with the judgment and award dated 12th September 2014 passed by the Motor Accident Claim Tribunal (Aux.), Bhavnagar in MACP no.296 of 2003.

2. Considering the grounds raised in the appeal and the submissions made by learned advocate for the appellant - insurance company, the captioned appeal was admitted and was directed to be heard along with the cross objections subsequently filed by the original claimants.

3. When the matter was taken-up for hearing today, learned advocate for the appellant has mainly referred to the grounds raised in the appeal, assailing the impugned judgment and award on the ground that liability of the appellant insurance company been erroneously determined.

4. I have carefully considered the grounds raised in the appeal memo. Howver, considering the smallness of the amount involved in the appeal, this Court is not inclined to entertain the appeal solely on the ground of smallness of the amount involved.

5. The captioned appeal is therefore dismissed. Since the appeal is not decided on merits, it shall be permissible to the appellant - insurance company to raise issue of law as raised in the present appeal, in matters which may be pursued by the appellant - insurance company and are pending consideration.

6. With these observations, the first appeal stands disposed of.

R/CROSS OBJECTION 62 of 2015 :-

1. As regards the cross-objections, the impugned judgment and award has been challenged at the instance of the original claimants essentially praying for enhancement of amount of compensation.

2. It would be appropriate to consider briefly the facts of the case:

2.1 On 27th March 2003, at about 4:30 in the morning, Ranchhodbhai Savjibhai Bariya, who was the husband of the applicant no.1.1 and father of applicant nos.1.2 to 1.6 / 1.8 to 1.9, had suffered a motor vehicle accident and had succumbed to fatal injuries.

2.2 On the fateful day, he was on his way to reach Bhavnagar market yard along with his nephew Jayantibhai to recover money after selling his wheat in the market yard. They were waiting for a mode of transport at Bhangadh bus stand so as to reach Bhavnagar. At that time, the driver of the offending vehicle, which is a mini matador rickshaw bearing registration no.GJ-4 B-8613, came from the opposite direction and dashed with the deceased. As a result of which, he sustained grievous injuries.

2.3 The heirs and legal representatives of the deceased filed a claim petition under section 166 of the Motor Vehicle Act, 1988 before the learned Motor Accident Claim Tribunal Auxiliary, Bhavnagar, which was registered as MACP no. 296 of 2003, thereby claiming compensation of Rs.6,00,000/- with interest at the rate of 9% from the date of filing of such claim petition till its actual realization from the original opponents.

2.4 The original opponents, mainly the driver of the offending vehicle, the owner of the offending vehicle, and the insurer of the offending vehicle were duly served with the notices, and were represented through their respective lawyers. The opponent no.3 - insurance company had submitted its written statement at Exh.13 raising dispute of liability by contending that even a pedestrian can be held liable for contributory negligence. On appreciation of the pleadings, the Tribunal had framed issues for determination at Exh.23 which read as under:

1. Whether the applicants prove that the deceased died due to rash and negligent driving of the driver/s of vehicle/s involved in this accident?

2. Whether the applicants are entitled for compensation? If yes, what amount and from whom?

3. What order and award?

3. The Tribunal, on appreciation of the oral and documentary evidence led on record as well as the arguments made by the learned advocate representing respective parties, has answered t