1. This appeal has been preferred against the judgment and award dated 19.10.2004 passed by the Motor Accident Claims Tribunal, Gandhidham – Kutch in M.A.C.P. No.222/2002 filed u/s.163-A of the M.V. Act whereby, the claim petition was partly allowed and the original claimants were awarded total compensation of Rs.3,44,000/- along with interest at the rate of 9% per annum from the date of application till its realization and costs.
2. The facts in brief are that on 08.07.2002 at about 1730 hrs. while Ravilal was going on a Scooter bearing registration no. GJ-12B-5680, owned by respondent no.5 herein, a Truck bearing registration no. GJ-12V- 6106 driven by respondent no.3, owned by respondent no.4 and insured with the appellant-Company, dashed the Scooter driven by Ravilal. In the said accident, Ravilal sustained severe bodily injuries and ultimately, died. His legal heirs filed the claim petition before the Tribunal, which came to be partly allowed, by way of the impugned award. Hence, this appeal.
3. Heard learned counsel for the appellant. The main contention raised on behalf of the appellant-Insurance Company is that the Tribunal ought to have fixed responsibility of each of the vehicle involved in the accident in terms of percentage of negligence. It has also been contended that the Tribunal erred in appreciating the fact that the original claimants had not joined the Insurance Company of the Scooter in question as party before the Tribunal and therefore, the impugned award deserves to be quashed and set aside.
4. Though served, none appears on behalf of respondents no.1, 2, 4 & 5.
5. Before the Tribunal, the representative of the appellant-Insurance Company conceded about the involvement of the two vehicles in the accident and also about the death of the deceased as a result of the injuries sustained in the said accident. Thus, before the Tribunal, the appellant-Insurance Company had not disputed about the factum of accident and the cause of death of deceased as a result of the said accident. Considering the said aspect of the case, it is now not open to the appellant-Insurance Company to raise the above issues in the present appeal. In view of the same, the present appeal deserves to be dismissed and is, accordingly, dismissed. No order as to costs.
[K. S. JHAVERI, J.] Pravin/*