PARSHOTTAM VIRJI PATEL Vs. HARIJAN RAMJI RUDA

JUDGEMENT

(1.) The short facts of the case appear to be that on 17.6.1980 at 4 p.m., near Village Shantipara on Veraval-Junagadh Highway, when the claimant was proceeding from Chorward to village Supasi in his rickshaw bearing GTW 4530, one motor truck bearing No. GTY 5204 was driven in rash and negligent manner and with an excessive speed the driver of the said truck lost control over the vehicle and the truck went off wrong side and dashed with the rickshaw of the claimant resulting into the accident and injuries to the claimant. The claimant filed Claim Petition No. 265 of 1985 before the Tribunal for the amount of Rs. 1 lac. The Tribunal after considering the evidence on record below issue No. 1 found that the driver of the truck was fully responsible for the accident and did not attribute any contributory negligence to the claimant and awarded the compensation of Rs. 24,800.00 together with interest at the rate of 6% and it is under these circumstances the present appeal before this Court.

(2.) Heard Mr.Parikh for Mr.Mehta, learned Counsel for the appellant, Mr.Sandeep Bhat for Mr.Dave, learned Counsel for respondents No. 1 and 2 - original claimants, and Mr.M.D.Pandya, learned Counsel for respondent No.

(3.) The only contention raised on behalf of the appellant by Mr.Parikh is that the Tribunal has not attributed any contributory negligence to the claimant, who was driving rickshaw. He submitted that the very Tribunal in Claim Petition preferred by the passenger of rickshaw being MACP No. 101 of 1981 with MACP No. 102 of 1981 for the very accident, attributed contributory negligence of 50% to the driver of the rickshaw and he submitted that the said decision dated 19.3.1983 passed by the very Tribunal in MACP No. 101 of 1981 on the aspects of contributory negligence was binding to the Tribunal and, therefore, the Tribunal could not have taken a different view than the view taken for contributory negligence for the driver of rickshaw - claimant herein. He relied upon the decision of this Court in the case of SUnited India Insurance Co. Ltd. v. Laljibhai Hamirbhai and Ors. reported in 2007(1) GLR, 633 and contended that the principles of res judicata operates in the subsequent petition to the Tribunal on the issue of negligence and, therefore, he submitted that the Tribunal has committed error and the appeal deserves to be allowed to that extent. He also submitted that the rickshaw was also insured by the Respondent No. 3 Insurance Company and, therefore, the liability could not be fastened by the Tribunal upon the appellant on the basis of 100% negligence on the driver of the truck.