1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.661 OF 2006 Mohan s/o Dhondiram Navale, Age: 48 years, Occu:Truck owner, R/o 37, Geeta Dr.M.B.Raut road No.2, Shivaji Park, Dadar, Mumbai 400 028. ...APPELLANT (Ori.Opponent No.3) VERSUS 1. Smt.Vandana Sanjay Birhade, Age: 31 years, Occu: Household, r/o. Kanalda, Dist. Jalgaon. 2. Ujwala Sanjay Birhade, Age: 15 yrs., Occu:Education. 3. Jyoti Sanjay Birhade, Age: 12 years, Occu: Education. 4. Aarti Sanjay Birhade, Age: 10 years, Occu: Education. 5. Sidhartha Sanjay Birhade, Age 6 years, Occu: Nil. 6. Manik Ranu Birhade, Age 70 years, Occu. Nil. Respondent No. 2 to 5 are minor through guardian - Respondent No.1. All r/o Kanalda, Tq. & District Jalgaon. 7. Kothari Crain Service, Dapoda, Oppo:Damani Ware House Tq.Bhivandi, Dist. Thane. 2 (8. Insurance Company Name not given. ) (Name of Res.No.8 is deleted as per Court's order dated 15.7.2008 passed in CA No.7807/2008 in F.A.No.661/2006) 9. New India Insurance Co.Ltd., Purana Agra Marg, Nasik, c/o Branch Manager, Jalgaon, Behind Dadhiwala Bunglow. ...RESPONDENTS (No.1 to 6 are Original claimants, No.7 to 9 are original opponents.) Mr. N.C.Garud, Adv., for the appellant. Mr. W. S.Jadhav, Adv., for respondent nos.1 to 6. Respondent no.8 deleted as per order dt. 15.7.2008. Mr.V.N.Upadhye, Adv., for respondent no.9. ... CORAM: A.V.NIRGUDE, J. DATE :3/8/2010 1. This First Appeal can be finally disposed of at the admission stage. 2. The appeal is filed against the judgment and award dt.4th Jan.,2006, passed by the learned Member of the Motor Accident Claims Tribunal, Jalgaon, in M.A.C.P. No. 89/2003. The respondent nos. 1 to 6 were the claimants. They are wife and children of one Sanjay who died in a motor accident. Sanjay was a Bus driver and on 9th May, 2002, was driving a State Transport ( for short, "S.T." ) Bus from Muktai Nagar to Kalyan. On Mumbai-Agra Highway, near village Punghe, an accident took place. A portion of a crane belonging to respondent no.7 got entangled with the rear wheel of a truck belonging to the appellant. Due to such entanglement, the truck collided with the S.T. Bus. 3 Sanjay sustained fatal injuries and he died within few days. Respondent no.9 is the Insurance Company which had insured the appellant's truck. 3. After recording evidence of the parties, the learned Member of the Tribunal came to a conclusion that both the drivers of the crane and the truck belonging to the appellant were negligent in driving their respective vehicles and due to their negligence, the accident had taken place. The learned Member held that respondent nos. 1 to 6 were entitled to Rs.6,93,532/- with interest at the rate of 6 per cent per annum. He, accordingly, directed the appellant, respondent no.7, the owner of the crane and respondent no.9, the appellant's insurance Company, to pay the amount jointly and severally to respondent nos. 1 to 6. However, the learned Member further directed that the liability of the respondent no.9, the Insurance Company of the appellant's truck would be limited to the extent of Rs.3,00,000/- (Rs. three lac) with interest. This portion of operative part of the impugned judgment and award is specifically challenged in this appeal. 4. The learned Advocate appearing for the appellant rightly pointed out that if the learned Member came to a conclusion that it was a case of contributory negligence then he could have specifically apportioned the percentage of the liability of the owners of the two vehicles, namely, the crane and the truck. On perusal of the judgment, it is found that no such attempt is made and 4 judgment is silent on such aspect In fact, in the judgment, the learned Member stated that both the drivers of the crane and the truck were negligent and due to their negligence, the accident had taken place. In view of such a finding, obviously, the liability to pay the compensation should have been equally divided between the owners of the vehicles. There is no reason given in the judgment as to why the liability of respondent no.9 alone is made limited to the extent of Rs.3,00,000/- (Rs.three lac). There is reason to believe that the learned Member, by passing such an order, was trying to suggest and direct that the liability of the owner of the vehicle, which respondent no.9 had insured, was limited to the extent of Rs.3,00,000/- with interest. Respondent no.9 was party to the litigation only because they had insured the appellant's truck. So, respondent no.9's liability is synchronous with the owner of the vehicle, which they had insured, namely, the appellant. However, respondent no.9 opposed this appeal on a very peculiar ground. The learned Advocate appearing for the respondent no.9 pointed out that, against the impugned judgment award dt. 4th Jan.,2006, the present appeal was lodged some time in March, 2006. He said, even the respondent no.9 too preferred an appeal against it vide First Appeal No.755/2006 in June, 2006. He then produced before me a judgment passed by this Court on 9th of June, 2008, dismissing his client's appeal No. 755/2006 in presence of the learned Advocate appearing for the appellant herein. He asserted that if his client's appeal was dismissed on merits, the impugned judgment and award would merge into the judgment and award 5 passed by this Court in First Appeal No.755/2006 and has attained finality. He also suggested that since the appellant's Advocate did not point out to the learned Judge of this Court on 9th of June, 2008, that his appeal ( the present one) was pending, he invited the said judgment of the 9th June, 2008, to his detriment. He, in other words, suggests that the judgment in appeal No.755/2006, would operate as res judicata. I am not inclined to accept this argument at all. The limited point the appellant has agitated in this appeal would not have been discussed in the appeal No.755/2006. On going through the judgment of this Court in Appeal No.755/2006, it is clear that the present respondent no.9 was trying to get themselves absolved from the liability on the basis of certain points. Such an attempt on their part failed in view of dismissal of appeal No.755/2006. So, at the most, the disposal of appeal No.755/2006 would confirm the liability fixed by the impugned judgment on the respondent No.9. The judgment in First Appeal No.755/2006 did not deal with the liability of the present appellant and so, the judgment in First Appeal No.755/2006 will not operate as res judicata. 5. This appeal, which is filed for a limited purpose, deserves to be allowed in view of the discussion made above. So, the objection raised by the appellant to the portion of the operative part of the order is valid and the appeal deserves to be allowed to correct the operative part of the impugned judgment and award. The appeal (No.661/2006) is allowed and following portion of the operative part of the impugned 6 order is corrected as under: " The liability of payment of compensation of respondent nos.3 and 4 is limited to the extent of Rs. Three lac with interest as ordered thereon." 6. The amount the appellant has deposited in this Court at the time of filing of the appeal shall be refunded to the appellant immediately. Civil Application (No.4369/2006) stands disposed of. [A.V.NIRGUDE, J.] agp/661-06fa/ok