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Judgment
Hasmukh D. Suthar, J
Admit. Learned advocate Mr. Yogi Gadhia waives service of notice of Admission for and on behalf of the respondent No.3. With the consent of learned advocates appearing for the respective parties, present appeal is taken up for final hearing today.
[1.0] Present First Appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “MV Act”) is filed by the appellants – original claimants challenging the impugned judgment and award dated 30.03.2024 by the learned Motor Accident Claims Tribunal (Main), Mahisagar at Lunawada (for short “learned Tribunal”) in Motor Accident Claim Petition No.88 of 2021, whereby the learned Tribunal was pleased to partly allow the claim petition by holding the respondents herein – original opponent Nos.1 to 3 jointly and severally liable to pay compensation of Rs.10,50,000/- to the original claimants.
[2.0] The brief facts leading to filing of present appeal are as follows:
[2.1] On 08.03.2021, the deceased Manilal (hereinafter referred to as “deceased”) and opponent No.1 were going on a motorcycle bearing registration No.GJ-07-BG-8638 and when they reached at the place of accident, suddenly a Neel Cow came on the road because of which the motorcyclist applied brake and both the riders of motorcycle fell from the motorcycle and deceased sustaining fatal injuries died. Therefore, legal heirs and representatives of the deceased filed MACP No.88 of 2021 seeking compensation of Rs.25 lakh.
[2.2] After considering the evidence produced and adduced, the learned Tribunal held the driver of motorcycle – original opponent No.1 to be solely negligent for the accident and was pleased to award Rs.10,50,000/- to the original claimants however, exonerated the insurance company and held only original opponent Nos.1 and 2 liable to pay the awarded compensation. However, the original claimants filed First Appeal No.188/2023 challenging exoneration of insurance company and the coordinate Bench of this Court partly allowed the First Appeal No.188/2023 vide judgment dated 06.09.2023 by setting aside the finding of learned Tribunal exonerating the insurance company from the liability to pay the compensation and MACP No.88/2021 was remanded back to the learned Tribunal for deciding afresh the issue of liability of insurance company.
[2.3] The learned Tribunal after affording opportunity of hearing to all the parties concerned, considered the MACP No.88/2021 afresh as per the directions issued by the coordinate Bench of this Court in para 7 of the judgment dated 06.09.2023 and held the original opponent Nos.1 to 3 jointly and severally liable to pay the compensation to the original claimants. However, once again the original claimants have come up with present appeal seeking enhancement of compensation awarded by the learned Tribunal.
[3.0] Though served, respondent Nos.1 and 2 have chosen not to appear before this Court.
[4.0] Learned advocate Mr. Nishit Bhalodi appearing for the appellants – original claimants has submitted that the learned Tribunal has committed an error in not properly appreciating the evidence and awarding inadequate compensation. He has further submitted that learned Tribunal has not considered minimum wages prevailing at the relevant point of time and even compensation under the head of loss of consortium is also not properly awarded. Hence, he has requested to allow the present appeal.
[5.0] Learned advocate Mr. Yogi Gadhia appearing for the respondent – insurance company at the outset opposed the present appeal on the ground that present appeal is barred by the principle of res judicata as earlier appeal being First Appeal No.88/2023 was filed by the present appellants wherein the coordinate Bench has been pleased to pass an order remanding the matter to the learned Tribunal to decide afresh the issue of exoneration of the insurance company as the learned Tribunal had exonerated the insurance company on the ground that the driver of offending motorcycle was not holding valid and effective license. The learned Tribunal thereafter considered the issue of exoneration of insurance company in remitted matter and held all the original opponents jointly and severally liable to pay the compensation to the original claimants. However, now once again the appellants have filed the present appeal challenging the quantum of compensation. Hence, he has requested to dismiss the present appeal.
[6.0] Having heard learned advocate for the appellants – original claimants and learned advocate for the insurance company and perusing the record, it appears the learned Tribunal after appreciating the evidence vide its earlier judgment and award dated 07.10.2022 partly allowed the MACP No.88/2021 and directed original opponent Nos.1 and 2 to jointly and severally pay compenstion of Rs.10,50,000/-to the appellants – original claimants with interest at the rate of 7% per annum from the date of filing of claim petition till its realization however, the learned Tribunal at earlier point of time was pleased to exonerate the insurance company holding that the driver of offending motorcycle was not havind valid and effective driving license on the date of accident. Being aggrieved and dissatisfied with exoneration of insurance company and on the ground of inadequate compensation, the appellants herein – original claimants had filed First Appeal No.188/2023 and the coordinate Bench of this Court vide its judgment dated 06.09.2023 was pleased to partly allow the appeal by observing thus in paragraph No.7.
“7. For the forgoing reasons, the First Appeal No. 188 of 2023 as well as the Civil Application (For Additional Evidence) No. 1 of 2022 succeed and are accordingly, allowed in part. The impugned judgment and award is hereby modified to the aforesaid extent, and the finding exonerating the insurance company from the liability to pay the compensation, is hereby set aside. The appellants – claimants are permitted to produce the copy of Driving Licence of the respondent No. 1 herein – original opponent No. 1 before the learned Tribunal concerned so as to examine the liability of the insurance company for the payment of quantum of compensation as has already been decided. Accordingly, the Motor Accident Claim Petition No. 88 of 2021 is remanded back to the Tribunal concerned at Mahisagar at Lunawada for deciding afresh the issue of liability of paying the compensation already decided as aforsaid. The Tribunal is directed to provide due opportunity of hearing and leading evidence qua the Driving Licence of the opponent No. 1 to both the sides and shall decide the issue of liability to pay the compensation, in accordance with law, as expeditiously as possible, but not later than four months.”
Thus, it clearly reveals that the matter was remand back only for the limited purpose of deciding the liability part qua the insurance company. After giving opportunity of hearing to both the parties, the learned Tribunal once again rendered the impugned judgment and award on 30.03.2024. Being aggrieved and dissatisfied, now once again the appellants – original claimants have filed the present appeal seeking enhancement of compensation.
[6.1] Perusing the judgment and award impugned in the present appeal, it appears that the learned Tribunal has not disturbed its earlier finding or has not assigned any reason qua quantum and only decided the issue of liability on the ground of non-holding of valid and effective driving license by original opponent No.1 and liability of the insurance company and the learned Tribunal by assigning reasons in paragraph 5 of the impugned judgment and award has come to conclusion that original opponent No.1 possessed valid and effective driving license at the time of accident and therefore, come to conclusion that the insurance company is obligatory to compensate the claimants in accordance with law and saddled the insurance company with liability to pay the compensation to the appellants – original claimants.
[6.2] In view of above, once the compensation was already determined which was accepted by co-ordinate Bench same order is not interfered only on the ground of liability the appeal being First Appeal No.188/2023, as the coordinate Bench in its judgment dated 06.09.2023 while remanding the matter to the learend Tribunal has observed more particularly in para 7, “the appellants – claimants are permitted to produce the copy of Driving Licence of the respondent No. 1 herein – original opponent No. 1 before the learned Tribunal concerned so as to examine the liability of the insurance company for the payment of quantum of compensation as has already been decided”, now the question to decide the issue of quantum of compensation in second round of litigation against the judgment and award dated 30.03.2024 passed by the learned Tribunal in remitted matter does not arise as present appeal is clearly barred by principle of res judicata qua quantum only. In this regard, reference is required to be made to the decision of the Hon’ble Supreme Court in the case of Syed Mohamamd Saadat Ali Khan vs. Mirza Wiquor Ali Beg reported in AIR (30) 1943 PC 115 and Vijayabai & Ors. v. Shriram Tukaram & Ors. reported in AIR 1999 SC 431 (Para 14).
[7.0] Further, it is needless to say that the appeal is required to be filed by a party on being aggrieved and dissatisfied with the original award or decree and right to appeal is a statutory right and party cannot be deprived of such statutory right to file appeal however, at the same time, if we peruse the impugned judgment and award dated 07.10.2022 wherein earlier the insurance company was exonerated on the ground of non-holding of valid and effective license by the driver of offending vehicle but now when the insurance company is saddled with the liability vide judgment and award dated 30.03.2024 (impugned herein), same is in favor of the appellants and even the learned Tribunal has not decided or disturbed the quantum of compensation and therefore, now question does not arise to re-open the issue of quantum of compensation decided by the learned Tribunal already in its judgment and award dated 07.10.2022. Even otherwise, earlier the compensation was calculated by the learned Tribunal vide judgment dated 07.10.2022, which was not assailed by the appellants on the ground of inadequacy and said judgment qua compensation part has attained the finality. If the appellants were aggrieved by the inadequate compensation then the appellants ought to have filed appropriate proceeding before appropriate forum. Hence, no case is made out to open again such issue.
[8.0] In wake of aforesaid conspectus, present First Appeal being devoid of any merit stands dismissed as it is barred by res judicata.
[9.0] The learned Tribunal is directed to disburse the entire amount alongwith the accrued interest thereon, if any, in favor of the original claimants, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure, strictly as per the apportionment made by the learned Tribunal.
[9.1] While making the payment, the Tribunal shall deduct the courts fees, if not paid.
[10.0] Record and proceedings, if any, be sent back to the concerned Tribunal, forthwith.