JUDGMENT : H.K. Rathod, J. Heard learned advocate Mr. H.M. Thakker for appellant-Insurance Co. 2. In present appeals, appellant-Insurance Co. has challenged common award passed by MAC Tribunal (Main), Rajkot, Exh. 154, decided on 16.1.2009, wherein claims Tribunal has awarded compensation in favour of respondents claimants. 3. Learned advocate Mr. Thakker has raised only one contention before this Court about finding given by claims Tribunal in respect to negligence of both drivers. The accident occurred on 16.1.1994 between Metador No. GJO-7752 and Tanker No. GTP 6926. Present appellant is the Insurance Co. of Tanker and Oriental Insurance Co. Ltd. is the Insurance Co. of Metador. 4. It is necessary to note that respondents are-D.P. Sheth-owner of Metador No. GJO 7752, Oriental Insurance Co. is the Insurance Co. of Metador, Kanjibhai Jivabhai, driver of Tanker No. GTP 6926, Dwarkadhish Transport owner of tanker, National Insurance Co. Ltd. is the Insurance Co. of Tanker. The claimants have filed separate applications claiming compensation from all respondents, those who are joint tortfeasor. 5. Learned advocate Mr. Thakker submitted that Issue No. 1 which has been decided by claims Tribunal erroneously, contrary to record and finding given by claims Tribunal that driver of the tanker was of 40% negligent, is also contrary to Panchnama and evidence on record. He read over before this Court Panchnama dated 16.1.1994 and pointed out that considering Panchnama as it is, driver of Metador was solely negligent and driver of tanker was not at all negligent. He relied upon a decision of claim Tribunal in respect to very same accident delivered by claims Tribunal, Ahmedabad in MACP No. 1044 of 1999 Exh. 51 wherein claims Tribunal, Ahmedabad come to conclusion while deciding issue No. 1 that driver of matador is solely negligent and responsible for accident occurred on 16.1.1994. Relevant discussion of Claims Tribunal, Ahmedabad as referred in above claim petition is in Para. 6, which is quoted as under : "6. On the point of negligent, the claimant has filed affidavit at Exh.30 in which he has reiterated the facts as alleged in the claim petition Exh. 1. During the cross, it is admitted that the Tanker in which, he was travelling is running on its left side and at that time, matador came totally on wrong side and in that way due to negligent driving of the matador driver, the accident took place. 1. During the cross, it is admitted that the Tanker in which, he was travelling is running on its left side and at that time, matador came totally on wrong side and in that way due to negligent driving of the matador driver, the accident took place. The claimant has produced copy of the F.I.R. and panchnama Report at Exh. 43 & 44. On perusal of the FIR, it transpires that it was lodged by Kanjibhai, the driver of Tanker No. GTP No. 6926, in which, it is stated that when he was travelling over said tanker in capacity as driver, and when he reached near Bhogavo Bridge, at that time, from the opposite side one Matador was coming with full speed and the driver of the Matador has lost the control over his vehicle and dashed the front portion of the matador to the Tanker and in that way, the accident took place. On perusal of the Panchnama Report, it transpires that the road is of 40 ft. width and the Tanker is lying on its left side and the matador is dashed on the driver side of the tanker and which means that the matador had left its left side and came towards the tanker and this position of the panchnamka report clearly suggests that the driver of the Matador was negligent in driving and because of his rash and excessive speed as he lost control over his vehicle and the accident took place and, therefore, I decide Issue No. 1 accordingly." 6. The claims Tribunal, Ahmedabad has considered FIR and Panchnama, Exh. 43 and 44. The complaint was filed by driver of Tanker-Shri Kanjibhai and after considering Panchnama report, claims Tribunal has come to conclusion that width of road is 40 ft. He relied upon one decision of this Court in case of United India Insurance Co. Ltd. v. Lalji Hamir reported in 2007 (1) GLR 633 . While relying upon the decision of this Court, learned advocate Mr. Thakker emphasised that principle of res-judicata is also applicable between co-defendants, therefore, in present case, all respondents are common and therefore, decision given by claims Tribunal, Ahmedabad holding solely responsible the driver of matador is also binding to claims Tribunal, Rajkot being a res-judicata as decided by this Court in aforesaid decision. Relevant paragraphs have been read over before this Court by learned advocate Mr. Thakker. Relevant paragraphs have been read over before this Court by learned advocate Mr. Thakker. It is necessary to consider Section-11 of CPC where it has been defined what is the res-judicata. Therefore, limited question which was examined by this Court in aforesaid decision in Para. 6 & 8 which is quoted as under : "5. The parties led evidence in support of their cases. On the basis of the material produced before it, the Claims Tribunal decided the issue with regard to negligence and held the driver of the truck fully responsible for causing the accident. The Tribunal also assessed the compensation which the claimant deserved to receive and in the opinion of the Tribunal, the claimant was entitled to receive compensation of Rs. 37,600=00 and directed that the owner and the insurer of the truck i.e. Respondent no. 2 and the appellant to satisfy the award jointly and severally, the judgment and award dated 16th April, 1983. In this appeal the challenge is to the finding given by the Claims Tribunal holding the driver of the truck solely responsible for causing the accident. According to the appellant, the driver of the bus also contributed to the accident. Mr. A.P. Medh learned advocate for the appellant submitted that the Claims Tribunal has committed error in adjudging the driver of the truck 100% negligent. He submitted that before the Tribunal, the judgment delivered in MAC Application No. 48 of 1981 by MACT-III [Spl.] Ahmedabad Rural at Narol, dated 22nd December, 1981 was produced at Exh. 27. The said proceedings also arose on account of the accident in question. In the said proceedings, which was filed by a passenger travelling in the S.T. Bus, the Tribunal gave a finding that the driver of the S.T. Bus was negligent to the extent of 30%, whereas the driver of the truck was negligent to the extent of 70%. In the said proceedings, the present appellant as well as respondent no. 2 were joined as opponents. According to Mr. Medh the said finding operated as res-judicata and the Tribunal was not justified in giving different finding. In support of his contentions, he has placed reliance on several judicial decisions. Mr. Medh also submitted that while computing the income of the claimant, the Tribunal has erroneously taken into consideration the illegal income which the claimant generated by having unauthorized passengers in the truck. In support of his contentions, he has placed reliance on several judicial decisions. Mr. Medh also submitted that while computing the income of the claimant, the Tribunal has erroneously taken into consideration the illegal income which the claimant generated by having unauthorized passengers in the truck. As against that Ms. Maya Desai learned advocate for respondent no. 2 submitted that the evidence on record of the present proceedings clearly showed that the sole negligence was that of the driver of the truck and, therefore, the Tribunal rightly held him 100% liable for causing the accident. She also submitted that the appellant had not taken any plea with regard to bar of res judicata in the written statement. She also submitted that in the earlier proceedings the contesting parties were claimant of that case and the appellant as also respondent no. 2 and, therefore, the bar of res judicata did not operate. She lastly submitted that the judgment at Exh. 27 is based on misreading of the facts and, therefore, the Tribunal was justified in the present case to arrive at an independent conclusion on the basis of the material produced before it on the aspect of negligence. No other submissions have been advanced by both the learned advocates. 6. The limited question, therefore, arises before this Court for consideration is whether the Tribunal could have taken different view on the issue of negligence than the one taken in former proceedings since the bar of res-judicata operated. So far the eligibility of the claimant to receive compensation and the quantum of compensation are concerned, no dispute has been raised by the learned advocates. I have, therefore, concentrated on the sole controversy whether principle of res-judicate could be applied in the present case. Section 11 of the Civil Procedure Code deals with res-judicata. It is as under:- Section 11 : Res-judicata-No Court shall try any suit or lease in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which the issue has been subsequently raised, and has been heard and finally decided by such Court." 7. It is, therefore, contended by Mr. It is, therefore, contended by Mr. Medh that the issue with regard to negligence was directly and substantially in issue in the former proceedings, namely MAC Application No. 48 of 1981 between the same parties and that issue was heard and finally decided by the Tribunal. Hence, the Tribunal in subsequent proceedings involving the same issue between the same parties could not have decided it since bar res-judicata operated. It may be seen here that in the earlier proceedings which were filed by Amratlal Devchandbhai against five respondents for claiming compensation of Rs. 25,000=00, Opponent no. 2 of the said proceedings was, owner of the offending truck who is also opponent no. 1 in the present proceedings. Opponent no. 3 of the said case is the appellant in the present appeal i.e. the insurance company of the truck, against whom notice under Section 96 (2) of the Act was taken out, during the course of hearing, as the insurer of opponent no. 1 namely Amin Transport Company. Thus, both i.e., the appellant and the insured were opponents in the earlier proceedings, as also respondent no. 2 i.e., GSRTC. The issue of negligence was raised in MAC Application No. 48 of 1981. The Claims Tribunal decided that the case of the claimant of that case and the bodily injury received by him were on account of rash and negligent driving of the both the vehicles namely S.T. Bus bearing registration No. GRT 6988 and the truck bearing registration No. GTB 6977. It held that so far as the truck driver was concerned, the negligence was 70% while negligence of the S.T., driver was 30%. Thus, on the basis of the material produced before it, the Tribunal gave the aforesaid finding. In the subsequent proceedings namely, MAC Application No. 520 of 1981 same issue was raised and the contesting parties on the said issue happened to be the same i.e., the insured and the insurer of the truck and the GSRTC. In the subsequent proceedings also, they are the opponents as already stated above. The contention of Ms. Desai is that the claimants in both the cases were different and, therefore, provisions of Section 11 of the Civil Procedure Code did not apply in this case. However, according to Mr. In the subsequent proceedings also, they are the opponents as already stated above. The contention of Ms. Desai is that the claimants in both the cases were different and, therefore, provisions of Section 11 of the Civil Procedure Code did not apply in this case. However, according to Mr. Medh Section 11 of the Civil Procedure Code can come into play even when there are two contesting defendants, who are common in both the cases. In view of these submissions, it will now be necessary for me to refer to the decisions cited and relied on by Mr. Medh. 8. The Privy Council in its decision rendered in the case of Syed, Mohamamd Saadat Ali Khan v. Mirza Wiquar Ali Beg & Ors., reported in A.I.R. (30) 1943 Privy Council at pg. 115 has observed as under :- "In order that a decision should operate as res judicata between co-defendants three conditions must exist : (1) There must be a conflict of interest between those co-defendants, (2) it must be necessary to decide the conflict in order to give the plaintiff the relief he claims, and (3) the question between the co-defendants must have been finally decided." 9. Thus, the Privy Council has laid down that if the aforesaid three conditions stand satisfied, res judicata can operate between the co-defendants also. In the present case these conditions are adequately satisfied. The co-opponents are common, the issue of negligence is decided finally and unless that issue was decided no relief could have been given to the claimant. In view of this decision, the submissions of Ms. Desai cannot be accepted. 15. Ms. Desai contended that the parties in the earlier proceedings and the subsequent proceedings are not the same. In other words, according to her, the claimant in MAC Application No. 48 of 1981 was the passenger in the Bus, whereas in MAC Application No. 521 of 1981, the claimant was the cleaner of the truck. She, therefore, submitted that Section 11 of Civil Procedure Code will not come into operation. This submission of Ms. Desai also cannot be accepted. She, therefore, submitted that Section 11 of Civil Procedure Code will not come into operation. This submission of Ms. Desai also cannot be accepted. Merely because the applicant in both the cases were different, it does not mean that the bar of res-judicata cannot operate since the controversy was between the two defendants who were parties to both the proceedings and that controversy was required to be decided to give relief to the applicants of both the cases. In the case of Ishwardas v. The State of Madhya Pradesh & Ors., reported in AIR 1979 SC. pg. 551, the Apex Court has held that in order to sustain the plea of res-judicata it is not necessary that all the parties to the litigation's must be common. All that is necessary is that the issue should be between the same parties or between the parties under whom they or any of them claimed. This decision also takes care of second limb of the submission of Ms. Desai that the material that was produced in earlier case was not before the Tribunal in the subsequent case. The Apex Court has further said that once the questions at issue in the two suits are found to be the same, the fact that the material which led to the decision in the earlier suit was not again placed before the Court in the second suit, cannot make the slightest difference. The plea of res-judicata may be sustained without anything more, if the question at issue and the parties are the same, subject of course to the other conditions prescribed by Section 11 of Civil Procedure Code." 7. This Court has considered the decision of Privy Council which is in Para.8 and subsequently, relied upon decision of Apex Court in case of Iftikhar Ahmed & Ors. v. Syed Meharban Ali & Others reported in 1974 (2) SCC 151 and after considering the aforesaid decision, this Court has come to conclusion that principle of res-judicata is applicable between co-defendants. Relevant observations is in Para. 18 which is quoted as under : "18. The Tribunal in the present case has referred to Exh. v. Syed Meharban Ali & Others reported in 1974 (2) SCC 151 and after considering the aforesaid decision, this Court has come to conclusion that principle of res-judicata is applicable between co-defendants. Relevant observations is in Para. 18 which is quoted as under : "18. The Tribunal in the present case has referred to Exh. 27 in paragraph 15 of its judgment, but it has not entertained the plea of res-judicata since in its opinion the parties have neither raised nor pleaded, the bar of res judicata and, therefore, the Tribunal has to decide the issue on the evidence before it. This reasoning of the Tribunal does not appear to be proper as already discussed above. Even if the plea is not specifically raised, the adequate material has been placed before the Tribunal by the appellant making its intention explicit. If that be so, the question of res judicata ought to have been examined by the Tribunal and appropriate finding ought to have been given on that issue. That has not been done. Nevertheless, I have gone through the judgment rendered in MAC Application No. 48 of 1981 by the Tribunal and in the said decision the Tribunal has referred the evidence of various persons connected with this case, which is in the form of affidavits. It has also referred the panchnama of the incident. The Tribunal has given categorical finding on the basis of the material that the truck driver ought to have maintained safe distance between the two vehicles and the distance of 8 to 10 feet could not be called safe distance. But again in paragraph 25, the issue of negligence has been discussed by the Tribunal and thereafter it has come to the conclusion that negligence of truck driver was 70%, whereas that of ST driver was 30%. In view of the same, by no stretch of imagination, it can be said that the finding given by the Tribunal in earlier case is not significant and it cannot operate as bar of res-judicata in subsequent proceedings. In view of the same, the contentions raised by Mr. Medh are upheld." 8. The principle of res-judicata as per decision of this Court as referred above is applicable between co-defendants and not between different plaintiffs and common defendants. In view of the same, the contentions raised by Mr. Medh are upheld." 8. The principle of res-judicata as per decision of this Court as referred above is applicable between co-defendants and not between different plaintiffs and common defendants. The ratio of decision of this Court is that either of defendants, those who are in earlier matter, if challenge the same issue against other co-defendants then, principle of res-judicata is applicable, otherwise not. So, principle of res-judicata is applicable as per decision of this Court between co-defendants in respect to issue which has been earlier decided by competent Court but, it is not binding or it will not operate as res-judicata between different plaintiffs having common respondents. In facts of this case, claimants are different, so it is not a case where parties are common but defendants are common and if there is any dispute between two defendants, then this res judicata is applicable only between co-defendants and not binding to claimants those who are totally unknown and different. Therefore, principle which has been decided by Privy Council as referred in para 8 and 9 is applicable between co-defendants, those who are common and issue of negligence is decided finally and unless that issue was decided, no relief could be given to claimants. Therefore, in facts of present case, claimants are totally different persons those who are not party to earlier proceedings and here, appellant being insurance company of tanker challenging award passed by the Claims Tribunal, Rajkot which has decided question of negligence between two different parties means not common parties as available in earlier decision of Claims Tribunal, Ahmedabad. Therefore, ratio is that if any of respondents those who are common in earlier proceedings cannot challenge inter se finding in respect to negligence which is decided finally by claims Tribunal, Ahmedabad, but I am afraid to accept this legal submission to such an extent that claims Tribunal, Ahmedabad decided issue of negligence between different claimant and common respondents is binding to different claimants, that is the ratio laid down in judgment delivered by this Court. Therefore, decision which has been relied upon by learned advocate Mr. Thakkar is not applicable to facts of this case because claimants are altogether different from earlier award given by claims Tribunal. 8.1 The decision of this Court, as referred above, cited by learned advocate Mr. Thakker having separate facts. Therefore, decision which has been relied upon by learned advocate Mr. Thakkar is not applicable to facts of this case because claimants are altogether different from earlier award given by claims Tribunal. 8.1 The decision of this Court, as referred above, cited by learned advocate Mr. Thakker having separate facts. The judgment delivered in MACP No. 48 of 1981 by claims Tribunal, Ahmedabad Rural at Narol on 22.12.1981 where question of negligence between ST Bus and truck was decided to the extent of 30% of bus driver and 70% of truck driver. In subsequent proceedings, the issue of negligence arose between ST Corporation and Insurance Co. of truck. In earlier proceeding i.e. MACP No. 48 of 1981, ST Corporation and National Insurance Co. of truck were co-defendants, so between co-defendants, issue of negligence is already decided in MACP No. 48 of 1981. In subsequent proceeding in MACP No. 520 of 1981, again same question arose between co-defendants means ST Corporation and United India Insurance Co. Ltd. The claims Tribunal in MACP No. 520 of 1981 come to conclusion that for rash and negligent driving, driver of truck was fully responsible for causing accident. Therefore, appeal preferred by United India Insurance Co. Ltd. being a co-defendant in earlier proceedings, raised contention that in earlier proceeding i.e. MACP No. 48 of 1981, truck driver was held negligent to the extent of 70% and ST Bus driver was negligent to the extent of 30%, that decision is binding to ST Corporation being a co-defendant. Therefore, this Court has considered appeal preferred by United India Insurance Co. Ltd. and considered dispute between co-defendant in respect to negligence of driver of ST bus and driver of truck where earlier decision of claims Tribunal in MACP No. 48 of 1981 is binding to ST Corporation being a res-judicata applicable under Section 11 of the CPC. In facts of present case, earlier decision given by claims Tribunal, Ahmedabad at Navrangpura in MACP NO. 1044 of 1999 where claims Tribunal has come to conclusion that matador driver is fully responsible for accident. In facts of present case, claims Tribunal has come to conclusion in MACP No. 851 of 2005 that tanker driver is held to be 40% negligent and 60% negligent is driver of matador. In this appeal, except Insurance Co. 1044 of 1999 where claims Tribunal has come to conclusion that matador driver is fully responsible for accident. In facts of present case, claims Tribunal has come to conclusion in MACP No. 851 of 2005 that tanker driver is held to be 40% negligent and 60% negligent is driver of matador. In this appeal, except Insurance Co. of tanker no other co-defendant is appeared because this appeal is decided by this Court at the stage of admission. No notice is issued by this Court to respondent, therefore, presence of matador driver, owner and Insurance Co. does not arise. This appeal is decided on admission filed by appellant Insurance Co. of tanker challenging finding of negligence relying upon earlier award passed by claims Tribunal in MACP No. 1044 of 1999 Exh. 51 and submission made that res-judicata is applicable. Such contention is not made applicable to facts of present case because no co-defendant is present in first appeal filed by Insurance Co. of tanker. If Insurance Co. of matador, owner and driver had appeared in present first appeal, then driver, owner and Insurance Co. of matador cannot support the finding given by claims Tribunal in present MACP No. 851 of 2005 because driver, owner and Insurance Co. of matador were co-defendants in earlier proceedings means Oriental Insurance Co. Ltd. being an Insurance Co. of matador as a co-defendants estopped to support the decision of claims Tribunal in present case. But in absence of co-defendants in present appeal, question of res-judicata is not applicable between appellant and respondent claimant only because respondent claimants were not parties to earlier claim petition. Therefore, respondent claimant is not co-defendant. So, principle of res-judicata is not applicable in present case. Therefore, this Court in cited decision decided controversy between co-defendant but, in facts of this case in absence of co-defendant, there is no question of deciding the controversy between co-defendants, therefore, considering facts of cited decision and facts of present case are altogether different. Therefore, decision relied upon by learned advocate Mr. Thakker is not helpful to him, though principle of res judicata is correctly decided by this Court but, due to facts are altogether different, this decision is not applicable to facts of present case. Therefore, contention raised by learned advocate Mr. Thakker cannot be accepted. 8.2 The contention raised by learned advocate Mr. Thakker is not helpful to him, though principle of res judicata is correctly decided by this Court but, due to facts are altogether different, this decision is not applicable to facts of present case. Therefore, contention raised by learned advocate Mr. Thakker cannot be accepted. 8.2 The contention raised by learned advocate Mr. Thakker relying upon aforesaid decision of this Court that res-judicata is applicable between co-defendants as per Section 11 of CPC but, finding given in respect of same subject matter in any other case between same party, same facts by competent Court, then it is binding as a res-judicata in a subsequent proceedings. In facts of this case, Panchnama Exh. 133 relied by claims Tribunal, Rajkot where width of road found to be blank but, same Panchnama considered by claims Tribunal, Ahmedabad where width of road is 40 ft. is mentioned from where claims Tribunal, Ahmedabad got it 40 ft., nowhere it is discussed and mentioned in award by claims Tribunal, Ahmedabad. Therefore, question of negligence examined by claims Tribunal, Rajkot and claims Tribunal, Ahmedabad not based upon same facts because both claims Tribunals having different facts. On that basis, claims Tribunal, Rajkot, which was not having 40 ft. width of road found from Panchnama, has discussed evidence as it is and come to conclusion that driver of tanker is also 40% negligent. The principle of res judicata applicable between co-defendants. When there is no challenge in between co-defendants in respect to same issue, then it is binding to only co-defendants and not to other parties, those who are not before claims Tribunal, Ahmedabad. Therefore, decision given by claims Tribunal, Ahmedabad in respect to issue of negligence is not binding to claimants of claim petition filed before claims Tribunal, Rajkot because claimants were not party to claim petition filed by other claimants before claims Tribunal, Ahmedabad. Therefore, learned advocate Mr. Thakker is not able to properly understand the ratio of decision relied upon by him. Therefore, this contention is not accepted by this Court. 9. The question of negligence decided by claims Tribunal, Rajkot in present case by considering submissions of all learned advocates those who were appeared before claims Tribunal and also considered submissions made by opponent insurance company's advocate Mr. Therefore, this contention is not accepted by this Court. 9. The question of negligence decided by claims Tribunal, Rajkot in present case by considering submissions of all learned advocates those who were appeared before claims Tribunal and also considered submissions made by opponent insurance company's advocate Mr. Maniyar that there was no negligence on part of driver of said tanker as accident not occurred on the bridge but it occurred at the entrance of bridge and at that time, tanker was coming from opposite direction with moderate speed and on its correct side means left side of the road, but matador was coming with excessive and full speed from opposite direction and dashed with tanker namely on front side of tanker. This contention raised by learned advocate Mr. Maniyar on behalf of appellant-insurance company has been examined by claims Tribunal, Rajkot while considering panchnama Exh-133 and also FIR Exh-132, which was lodged by driver of tanker. The claims Tribunal after considering affidavit filed by claimants Exh-51 to 59 and also Exh-132 FIR and Exh-133 Panchnama come to conclusion that both said vehicles means matador as well as tanker were on head on collision and also injured witnesses have stated in their respective affidavits about head on collision of both the said vehicles but in cross-examination, nobody has stated about scene of said accident. Therefore, from averments mentioned in respective claim petition and facts stated in respective affidavits of petitioner, it is not cocksure about sole responsibility of occurrence of said accident either on the part of driver of matador or on the part of driver of tanker. It was not disputed facts that driver of matador died on the spot and complaint was lodged by driver of tanker, naturally he must have tried to blame driver of opposite vehicle for said accident. So, from the FIR it cannot be said that only and only driver of matador was sole responsible for said accident. From panchnama of place of occurrence Exh. 133, it appears that driver side of both vehicles had been impacted and damaged showing that both vehicles were not impacted in front of each means not head on collision of each other. From panchnama of place of occurrence Exh. 133, it appears that driver side of both vehicles had been impacted and damaged showing that both vehicles were not impacted in front of each means not head on collision of each other. Said accident not occurred on the area of bridge but, occurred at the entrance of bridge, naturally at the time of entrance of bridge, vehicle means said tanker was coming from opposite direction and trying to enter in the area of bridge and therefore, naturally its speed might be normal and front of vehicle i.e. tanker, at the time of entrance of bridge, might be suddenly seen by driver of said matador and at that time, driver of matador might be suddenly shocked and lost his control over his vehicle and impacted at driver side of said tanker. 9.1 From aforesaid discussion made by claims Tribunal that driver of said tanker is also negligent in driving of his vehicle upto extent of 40% and driver of matador is also negligent in driving his vehicle upto 60%. Accordingly, Issue No. 1 is decided. 10. The evidence which were led by claimants before claims Tribunal, Rajkot and claims Tribunal, Ahmedabad are different and persons are also different and evidence are different which has been appreciated by both independent claims Tribunals separately. The Panchnama Exh. 133, the width of road remained blank, therefore, no measurement is mentioned showing the width of road but, this portion is blank, so from this Panchnama of occurrence of accident, the Presiding Officer, FTC No. 9, Ahmedabad has come to conclusion that width of road is 40 ft. The reasoning given by claims Tribunal in Para. 8, 9 and 10 are quoted as under : "8. Learned advocate Shri D.R. Chaudhary, for opponent No. 2-Insurance Company of said matador, has argued that accident occurred on the bridge on national highway, width of said bridge is naturally narrow and at the time of accident, tanker was coming from opposite direction and trying to enter on the bridge and at that time, driver of said matador suddenly puzzled and lost his control over the steering and both the vehicles impacted on driver side. Therefore, driver of tanker is also responsible for negligent driving up to such extent if Hon'ble Tribunal deems it fit. Therefore, driver of tanker is also responsible for negligent driving up to such extent if Hon'ble Tribunal deems it fit. In support of his arguments, he has cited authority in the case of Municipal Corporation of Greater Bombay v. Shri Laxman Iyer and Another, reported in 2004 (1) TAC 3 (S.C.) wherein, Hon'ble Supreme Court has held that "the act or omission amounting to want to ordinary care or in defiance of duty or obligation on the part of the complaining party which conjointly with the other party's negligence was the proximate cause of the accident renders it one to be the result of contributory negligence." 9. As against, learned advocate Shri A.P. Maniar, for opponent No. 5-insurance company of said tanker, has vehemently argued that there was no negligence on the part of driver of said tanker as accident not occurred on the bridge but, it occurred at the entrance of bridge and at that time, tanker was coming from opposite direction at moderate speed and on its correct side means left side of the road but, matador was coming in excessive and full speed from opposite direction and dashed with tanker i.e. on front of the tanker. He has relied upon panchnama of scene of occurrence Exh. 133 and submitted that pieces of glass and broken articles of matador were lying on the spot indicating that tanker was in normal speed otherwise said pieces of glass and broken articles of matador would have been lying twenty feet far away from the place of accident if in case tanker was in full and excessive speed. He has also submitted that width of bridge is enough an sufficient for passing two vehicles coming from opposite directions even though, accident occurred due to sole negligence on the part of driver of said matador. He has further submitted that according to pleadings, particularly in para. 10 of claim petitions, driver of said matador suddenly puzzled and lost his control over the steering and impacted on the front of said tanker. He has also relied upon FIR Exh. He has further submitted that according to pleadings, particularly in para. 10 of claim petitions, driver of said matador suddenly puzzled and lost his control over the steering and impacted on the front of said tanker. He has also relied upon FIR Exh. 132 and submitted that FIR is not lodged by the driver of said matador but, it is lodged by driver of said tanker indicating that sole responsibility of accident is not on the head of driver of said tanker but, it is on the head of driver of said matador and, therefore, he has submitted that considering above stated facts, opponent No. 5 Insurance Co. of said tanker may be exonerated from liability of paying compensation to the applicants of these claim petitions. In support of his arguments, he has cited authority in the case of United India Insurance Co. Ltd. v. Laljibhai Hamirbhai, reported in 2007 (1) GLR 633 wherein, Hon'ble High Court of Gujarat has discussed the condition for a judgment to operate as res judicata and held that "bar of res judicata would not operate on the reasons that claimant being different or plea not taken by party or material placed Tribunal being different in two petitions cannot held to be proper and if question of issue and parties are same, material which led to decision being different makes no difference". Shri Maniar has also relied upon judgment of Presiding Officer, FTC No. 7, Ahmedabad (Rural) pronounced in MACP No. 1044/1999 arisen from the said accident but, this judgment is delivered by Presiding Officer, FTC so, naturally not binding to this Court considering well settled principle of judicial precedent. On perusal of said judgment, it appears that said Court has observed that "on perusal of the panchnama report, it transpires that the road is of 40 ft. width" but on perusal of panchnama Exh. 133, no measurement is mentioned showing the width of said road but this portion is blank. So, from which panchnama of occurrence of accident, Presiding Officer, FTC No. 7, Ahmedabad, has come to conclusion that width of road is 40 ft. not only that but, nothing on the record of present cases about width of said road. 10. Considering above said arguments, Tribunal has to decide the point of negligence either on the head of driver of said matador or on the head of driver of said tanker or both. not only that but, nothing on the record of present cases about width of said road. 10. Considering above said arguments, Tribunal has to decide the point of negligence either on the head of driver of said matador or on the head of driver of said tanker or both. For that, from scrutinising the averments made in each claim petitions and affidavits filed by applicants vide Exh. 51 to 59 and also the FIR vide Exh. 132 and panchnama of place of occurrence vide Exh. 133, it appears that as per averments mentioned in respective claim petitions, both the said vehicles means matador as well as tanker were head on collision and also injured witnesses have stated in their respective affidavits about head on collision of both the said vehicles but, in cross-examination, nobody has stated about seen of said accident. Therefore, from the averments mentioned in respective claim petitions and facts stated in respective affidavits of the petitioners, it is not cocksure about sole responsibility of occurrence of said accident either on the part of driver of matador or on the part of driver of tanker. Further more, it is not disputed fact that driver of matador died on the spot and complaint was lodged by the driver of tanker, naturally try to blame the driver of opposite vehicle for said accident. So, from the FIR it cannot be said that only and only the driver of matador was sole responsible for said accident. From panchnama of place of occurrence Exh. 133, it appears that driver side of both vehicles had been impacted and damaged showing that both vehicles were not impacted in front of each means not head on collision of each other. Further, said accident not occurred on the area of bridge but, occurred at the entrance of bridge, naturally at the time of entrance of bridge, vehicle means said tanker was coming from opposite direction and trying to enter in the area of bridge and, therefore, naturally its speed might be normal and the front of the vehicle i.e. tanker, at the time of entrance of bridge, might be suddenly seen by the driver of said matador and at that time, driver of matador might be suddenly shocked and lost his control over his vehicle and impacted at the driver side of said tanker. From the above said discussions, it is the view of this Tribunal that driver of said tanker is also liable for negligence in driving of his vehicle up to extent of 40% and driver of said matador is liable for negligence in driving of his vehicle upto extent of 60%. Hence, Issue No. 1 is answered accordingly in the affirmative that driver of matador No. GJO-7752 is negligent to the extent of 60% whereas opponent No. 3 driver of tanker No. GTP-6926 is also negligent to the extent of 40% for the occurrence of accident as a result of which, three persons died and other persons sustained injuries." 11. The view taken by Apex Court in case of Andhra Pradesh State Road Transport Corporation and Another v. K. Hemlatha and others reported in (2008) 6 SCC 767 where test of contributory negligence to be examined by claims Tribunal is decided. When two vehicles are there, who was driving his vehicle negligently and rashly and in case both were doing so, who was more responsible for the accident and who of the two had last opportunity to avoid the accident, held, are the relevant facts for apportionment of damages and plaintiff can be found guilty of contributory negligence if he ought to have foreseen that if he did not act as a reasonable, reasoned man, he might himself be hit and he must take into account the possibility of other being careless. In case before Apex Court, proportion fixed at 1:4. Relevant observations made in Para. 11, 13 and 14 which is quoted as under : "11. To determine the question as to who contributed to the happening of the accident, it becomes relevant to ascertain who was driving his vehicle negligently and rashly and in case both were so doing who were more responsible for the accident and who of the two had the last opportunity to avoid the accident. In case the damages are to be apportioned, it must also be found that the plaintiff's fault was one of the causes of the damage and once that condition is fulfilled the damages have to be apportioned according to the apportioned share of the responsibility. If the negligence on the plaintiff's part has also contributed to damage this cannot be ignored in assessing the damages. If the negligence on the plaintiff's part has also contributed to damage this cannot be ignored in assessing the damages. He can be found guilty of contributory negligence if he ought to have foreseen that if he did not act as a reasonable, reasoned man, he might be hit himself and he must take into account the possibility of others being careless. 13. In an accident involving two or more vehicles, where a third party (other than the drivers and/or owners of the vehicles involved) claims damages for loss or injuries, it is said that compensation is payable in respect of the composite negligence of the drivers of those vehicles. But in respect of such an accident, if the claim is by one of the drivers himself for personal injuries, or by the legal heirs of one of the drivers for loss on account of his death, or by the owner of one of the vehicles in respect of damages to his vehicle, then the issue that arises is not about the composite negligence of all the drivers, but about the contributory negligence of the driver concerned. 14. "6. `Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence. 7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of `composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error. The above position was highlighted in T.O. Anthony v. Karvarnan & Ors. [ 2008(3) SCC 748 ]." 12. The Apex Court has in case of T.O. Anthony v. Karvarnan and others reported in 2008 ACJ 1165 has examined the question of contributory negligence as well as composite negligence in Para. 5 and 6, which is quoted as under : "5. The Tribunal assumed that the extent of negligence of the appellant and the first respondent is fifty : fifty because it was a case of composite negligence. The Tribunal, we find, fell into a common error committed by several Tribunals, in proceeding on the assumption that composite negligence and contributory negligence are the same. In an accident involving two or more vehicles, where a third party (other than the drivers and/or owners of the vehicles involved) claims damages for loss or injuries, it is said that compensation is payable in respect of the composite negligence of the drivers of those vehicles. In an accident involving two or more vehicles, where a third party (other than the drivers and/or owners of the vehicles involved) claims damages for loss or injuries, it is said that compensation is payable in respect of the composite negligence of the drivers of those vehicles. But in respect of such an accident, if the claim is by one of the drivers himself for personal injuries, or by the legal heirs of one of the drivers for loss on account of his death, or by the owner of one of the vehicles in respect of damages to his vehicle, then the issue that arises is not about the composite negligence of all the drivers, but about the contributory negligence of the driver concerned. 6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence." 13. In aforesaid both the decisions, the Apex Court has examined question of contributory negligence in respect to both drivers when accident occurred between two vehicles. In aforesaid both the decisions, the Apex Court has examined question of contributory negligence in respect to both drivers when accident occurred between two vehicles. So, considering facts of this case that tanker was coming from opposite side and trying to enter in the bridge, before entering in the bridge the tanker driver must have seen the matador coming from opposite side, then he can make serious efforts while taking reasonable care as reasoned man to avoid the accident but, that care is not taken by him when accident occurred. In such circumstances, when two vehicles dashed to each other and considering damage caused to matador and driver of matador and driver of matador has died and driver of tanker was not examined before claims Tribunal, why he was not examined it is known to owner and Insurance Co. of tanker. It is also necessary to note that in respect of driver and owner of tanker, then remained absent. No one appeared in their behalf before claims Tribunal, therefore, three advocates had appeared, one is for claimant, another for Oriental Insurance Co. Ltd. and Shri Maniyar for present appellant Insurance Co. For rest of respondents, no appearance is filed by any of advocate. When claimants filed affidavit which was not cross-examined by driver or owner of tanker, only examined by advocate of Insurance Co. and considering allegations made against both drivers in affidavit of claimant, driver of tanker not examined, come forward to explain how accident is occurred. In absence of that, whatever evidence was available before claims Tribunal, the claims Tribunal has rightly analysed it and on that basis, according to claims Tribunal, it is not cock-sure about the sole responsibility of the occurrence of said accident either on the part of driver of matador or on the part of driver of tanker. This was observations of claims Tribunal because driver of tanker was not examined before claims Tribunal, Rajkot. Therefore, according to my opinion, claims Tribunal has rightly examined evidence on record and decision which has been relied by learned advocate before claims Tribunal, Ahmedabad in respect to very same accident and also considering decision of this Court in case of United India Insurance Co. Therefore, according to my opinion, claims Tribunal has rightly examined evidence on record and decision which has been relied by learned advocate before claims Tribunal, Ahmedabad in respect to very same accident and also considering decision of this Court in case of United India Insurance Co. Ltd. v. Laljibhai Hamirbhai reported in 2007 (1) GLR 633 (Para 9) and no error is committed by claims Tribunal in deciding the issue of negligence because there was no clear evidence led by respective parties before claims Tribunal and driver of tanker remained absent and not explained how it occurred, in such circumstances, claims Tribunal has rightly decided question of negligence and come to conclusion that accident occurred due to 40% negligence of tanker driver and 60% negligence of matador driver. For that, according to my opinion, no error is committed which requires interference by this Court. Therefore, contentions raised by learned advocate Mr. Thakker cannot be accepted and same are rejected. Therefore, there is no substance in present appeals and all appeals are dismissed. 14. In view of the order passed in main first appeals, no order is required to be made in civil applications for stay. Accordingly, civil applications for stay are also dismissed. 15. Amount, if any, deposited in the Registry of this Court by the appellant-Insurance Co., same shall be transmitted to claims Tribunal concerned forthwith. Appeals dismissed.