USHABEN SAILESHBHAI NISARATA Vs. RAFIQMUHEMMED ALAFKHAN PATHAN

JUDGEMENT

(1.) Since these appeals arise out of the same impugned judgment and award passed by the Tribunal, this Court by order dtd. 24/7/2015 had directed these appeals to be heard together and are accordingly heard and decided by this common judgment and order. First Appeal No.2858 of 2011 is treated as lead matter.

(2.) First Appeal No.2858 of 2011 is filed under Sec. 173 of the Motor Vehicles Act challenging the impugned judgment and award dtd. 6/7/2011 passed by the learned Motor Accident Claims Tribunal, Dahod in MACP No.7267 of 2004, whereas First Appeal No.3264 of 2011 is directed against the same common judgment and award passed in MACP No.20 of 2005. By the said judgment and award, the Tribunal has dismissed the claim petition against the opponent nos. 1 to 3 who are the driver, owner and insurer of the offending truck and has further allowed the claim petition at Exh.4 against original opponent nos. 4 and 5, who is the heir and legal representative of the deceased owner of Motorcycle involved in the accident and its Insurance Company. By the said direction, the Tribunal has held original opponent nos.4 and 5 jointly and severally liable to pay interim compensation of an amount of Rs.50,000.00 under the head of "no fault liability" with interest at the rate of 7.5% from the date of filing of claim petition i.e. from 16/12/2004 till its deposited or realization before the Tribunal. The Tribunal has thereafter issued necessary directions with regard to disbursement. At the same time in MACP No.20 of 2005 while dismissing the claim petition against the original opponent nos. 1 to 3 who are the driver, owner and insurer of the offending truck, no further relief has been granted qua opponent nos. 4 and 5 also noticing that the deceased cannot be treated as third party to extend such benefit under the Motor Vehicles Act.

(3.) In nutshell the case alleged against the opponents by the claimants who are heirs and legal representatives of the deceased pillion rider Shaileshbhai Nisarta (MACP No.7267 of 2004) and deceased driver of Motorcycle Ramanbhai Kalibhai Nisarta (MACP No.20 of 2005) is that: