NURMAMAD HASAM Vs. AYUB HASAM SANDHI

JUDGEMENT

(1.) HEARD learned advocate Mr. Rachh appearing on behalf of appellants and learned advocate Ms. Hina Desai appearing on behalf of respondent No. 3 - Insurance Company.

(2.) THIS group of appeals is filed by claimants appellants under Section 173 of the M. V. Act. The appellants have challenged the award passed by MACT, Jamnagar in respect of MACP No. 749 of 1997, 750 of 1997, 123 of 2000 and 124 of 2000. These four claim petitions are decided by claims tribunal while passing common award Exh. 84 on 12th September 2006.

(3.) LEARNED advocate Mr. Rachh raised contention before this Court that accident occurred on 1st April 1989 where all the claimants were going from Jamnagar to Kutch as the owner of goods in truck No. GTB-5310 and when they reached at a circle of bridge of village Aamran, at that time, the driver of opponent No. 2 drove the truck in rash and negligent manner and in excessive speed. As a result, the offending vehicle turned turtled and due to that, all the claimants sustained grievous injuries and permanent partial disablement in their bodies. For that, they were admitted in Irvin Hospital for treatment as indoor patients and they have to spent huge amount towards medicines, transportation, special died, etc. They were doing labour work and was earning income from it and due to disablement, they cannot do labour work as was done prior to accident. Therefore, claim petitions were filed by claimants under Section 166 of the MV Act. Leaned advocate Mr. Rachh submitted that claims tribunal has examined the matter on merits and thereafter, examined the question of liability as to whether insurance company is liable to pay compensation or not and while considering this question, claims tribunal has come to conclusion that accident occurred prior to amendment i. e. 14th November 1994 of Section 147 of the MV Act. Therefore, insurance company is not liable to pay compensation to the claimant. Learned advocate Mr. Rachh submitted that this decision or conclusion of claims tribunal is under challenge in group of appeals. He also submitted that other claim petitions which are arising from the said accident, have been decided by claims tribunal being Claim Petition No. 296 of 1989, 256 of 1989, 289 of 1989, 380 of 1989 and 4 of 1990, where, claims tribunal has decided on 2nd December 1995 and come to conclusion that insurance company is liable though accident is occurred prior point of time from the date of amendment. He submitted that this fact has been mentioned in written arguments by the claimants and copy of the award was produced on record before the claims tribunal. But, claims tribunal has not considered it and discussed it, therefore, first appeal is filed. He submitted that once the claims tribunal has examined the matter by deciding the question raised by claimants, then, subsequently, for the same question, different answer cannot be given, otherwise, it amounts to bar of res judicata. He submitted that earlier parties and proceedings are same and accepted the claimant, therefore, he relied upon the decision of this Court in case of United India Insurance Co. Ltd. v. Laljibhai Hamirbhai and Ors. reported in 2007 (1) GLR 633 and submitted that a principles of res judicata has been applied which has been discussed in aforesaid decision. Therefore, claims tribunal has committed gross error in exonerated the insurance company where it is the case of claimant where they were travelling as the owner of the goods. Learned advocate Mr. Rachh also raised further contention that on 1st April 1989, when accident occurred, The MV Act, 1988 was not came into force, but, it was covered under the earlier M. V. Act, 1939.