1. Heard learned advocates for the parties and perused the papers on record.
2. The appellant herein has challenged the award dated 03.06.1992 passed by the Motor Accident Claims Tribunal (Main), Rajkot in Motor Accident Claims Petition No. 531 of 1989 so far as the Tribunal awarded only Rs. 81,000/- as compensation with interest at 12% per annum after holding the appellant 25% negligent.
3. It is the case of the appellant that on 22.06.1986 while the appellant who was the driver of S.T bus bearing registration no. GRU 7784 halted his bus on seeing truck bearing registration no. GTX 5847 being driven by the original opponent no. 1 in a rash and negligent manner. The truck driver dashed the truck heavily against the bus as a result of which the appellant and several others sustained injuries on various parts of the body. The appellant therefore filed claim petition to the tune of Rs. 3,00,000/-. The Tribunal after hearing the parties passed the aforesaid award.
4. Mr. Lathia, learned advocate appearing for the appellant submitted that the Tribunal failed to take into consideration the entire facts of the case and evidence on record and thereby erred in awarding adequate amount under various heads. He submitted that the Tribunal has wrongly come to the conclusion as far as 25% contributory negligence of the appellant is concerned. He submitted that the Tribunal has wrongly assessed the income and disability of the appellant.
5. Mr. Maulik Shelat, learned advocate appearing for the respondent Insurance Company supported the award passed by the Tribunal and submitted that the Tribunal has rightly passed the award after taking into consideration the evidence adduced by both the parties. He has relied upon a decision of the Apex Court in the case of Machindranath Kernath Kasar vs. D.S. Mylarappa and Others reported in 2008(13) SCC 198 and another decision of this Court in the case of United India Insurance Co. Ltd. vs. Laljibhai Hamirbhai and Others reported in 2007(1) GLR 633 and submitted that the appellant being one of the tort feasors was found to be negligent by the Tribunal in claim petitions filed by the passengers of the bus and that finding of the Tribunal in the claim petitions has never been challenged by the appellant. Hence, at this stage in this appeal appellant is not permitted to challenge the issue of negligence which is already accepted by him in the said claim petitions.
6. As a result of hearing and perusal of records, this court is of the view that considering the evidence on record and the facts and circumstances of the case, the Tribunal came to the conclusion that the appellant sustained injuries as a result of the rash and negligent driving of the original opponent no. 1 and the appellant himself. The Tribunal has concluded that the bus was in motion and not stationary at the time of accident and that the bus driver was driving a heavy passenger vehicle and that on seeing a truck coming from the opposite side in full speed it was his duty to take the bus off the road and stop the bus but he failed to exercise such care and circumspection and therefore the accident took place. Nothing is pointed out before this Court to take a contrary view.
6.1 This Court is inclined to accept the contentions of the learned advocate for the respondent. The appellant has not challenged the aspect of 25% contributory negligence in other similar claim petitions which means that the same has attained finality. The principle of resjudicata shall come into play in the present case and therefore considering the decisions of the Apex Court as well as this Court in the cases cited hereinabove, unless the finding of negligence in the claim cases of the passengers was negatived in the claim case filed by the appellant, the said finding of negligence on the part of the appellant cannot be varied.
7. The Tribunal has finally quantified the amount of compensation at Rs. 81,000/-. This court is in complete agreement with the reasonings adopted and findings arrived at by the Tribunal and therefore do not see any reason for causing interference. In the premises aforesaid, appeal is dismissed. No costs.
(K.S. JHAVERI, J.) Divya//