HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO M.A.C.M.A.Nos.3539 OF 2009 AND 1716 OF 2011 COMMON JUDGMENT: Both the appeals are filed by the Insurance Company, questioning the liability exclusively on the appellant. 2. M.A.C.M.A.No.3539 of 2009 was filed against the award in M.O.P.No.603 of 1999 on the file of the Motor Accidents Claims Tribunal-cum- I Additional District Judge, Visakhapatnam and M.A.C.M.A.No.1716 of 2011 was filed against the award in M.O.P.No.1985 of 1999 on the file of the Motor Accidents Claims Tribunal-cum- I Additional District Judge, Visakhapatnam. In both these claims, compensation was claimed for the death of the deceased persons caused while travelling in a Mini Van bearing No.AP 31 U 349. 3. According to the case of the petitioners, on 14.11.1997 when the van reached Salagalagadda, the lorry bearing No.ADN 9099 driven by its driver came in a rash and negligent manner and dashed against the van, as a result of which, the deceased persons died. In this case several persons have died and claims were filed at Visakhapatnam and also at Vizianagaram. The Tribunal at Visakhapatnam after considering the evidence on record has fixed the liability on the appellant alone holding that the incident was due to the fault of the driver of the lorry. Whereas the Tribunal at Vizianagaram in a connected O.P.No.488 of 1998 on the file of the Motor Accidents Claims Tribunal-cum- Additional District Judge, Vizianagaram, in which the compensation was claimed by the driver of the lorry, has fixed the contributory negligence on both the drivers. The negligence of the lorry driver was fixed at 75% and the negligence of the driver of the van was fixed at 25%. The same contention was raised before the Tribunal at Visakhapatnam but the learned Tribunal did not accept the contention and on the basis of the material evidence on record, fixed the total responsibility of rashness and negligence on the driver of the lorry alone. 4. The learned counsel for the Insurance Company disputed the fixation of the total liability on the driver of the lorry alone. 5. The point for consideration is whether in view of the previous award of the Tribunal at Vizianagaram, in which the contributory negligence was fixed, the fixation of the total liability of negligence on the driver of the lorry alone by the Tribunal at Visakhapatnam is legal and sustainable? 6. POINT: In fact touching on this aspect the arguments were advanced before the lower Tribunal and the lower Tribunal has found that the material witness was not examined before the Vizianagaram Tribunal. But, the evidence adduced before the Tribunal at Visakhapatnam clearly establishes the total liability of negligence on the part of the driver of the lorry alone. The learned counsel for the respondents/petitioners has stated that in connected mattes arising out of the same accident, appeals were filed and in C.M.A.No.544 of 2002 and batch, this Court in judgment dated 04.12.2003 has considered the arguments of the counsel for the appellant on this aspect and has come to the conclusion that the finding of the contributory negligence by the tribunal at Vizianagaram cannot be taken as final since the Tribunal at Visakhapatnam has considered the evidence on record and opined that the total negligence was on the driver of the lorry alone. Since the said Judgment is between the appellant herein and other claimants in the connected matters arising out of the same accident, it cannot be ignored. The learned counsel for the appellant contends that in those appeals the contention of the appellant was not considered for the reason that a petition under Section 170 of the Motor Vehicles Act was not filed, whereas in these two appeals the petition under Section 170 of the Motor Vehicles Act was filed. Whatever may be the reason for not considering about the quantum of compensation in the earlier appeals, the fact remains a finding has been arrived to the effect that the opinion of the Tribunal at Visakhapatnam about fixing of the liability totally on the driver of the lorry is legal and the award of the Tribunal at Vizianagaram is not conclusive. This being a question of fact recorded between the parties and as against the appellant herein, there are no grounds to differ with the opinion expressed by the learned Judge in the appeals and consequently there are no merits in these appeals. Point is answered accordingly. In the result, both the appeals are dismissed. There shall be no order as to costs. _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date:12.10.2011 INL