JUDGMENT On a mention being made by learned advocate Mr. Gautam M. Joshi papers of First Appeal No.4486 of 1996 are called for from the Registry. The same are received. 2. These two appeals are filed by Gujarat State Road Transport Corporation (hereinafter referred to as ‘GSRTC’) being aggrieved by judgment and award dated 22.07.1996 passed by the Hon’ble Motor Accident Claims Tribunal (Main), Bhavnagar in Motor Accident Claim Petitions No.347 of 1996 (First Appeal No.4486 of 1996) and Motor Accident Claim Petitions No.89 of 1996 (First Appeal No.4487 of 1996). 3. On perusal of papers of the memo of appeal it is noticed that the First Appeal is filed challenging common judgment and award passed in Motor Accident Claim Petitions No.347 of 1993, 89 of 1994, 117 of 1994 and 95 of 1994. Incidentally, First Appeals are filed only in two matters, namely, MACP No.347 of 1993 and 89 of 1994, whereas in MACP No.117 of 1994 and MACP No.95 of 1994 no First Appeals are filed by GSRTC. 4. In the present First Appeals grounds of challenge are set out which contain usual grounds of challenge in addition to specific grounds being Grounds (C) and (D), the same are reproduced hereunder: “(C) The Hon’ble Tribunal erred in holding that the accident occurred on account of negligent driving of the driver of the appellant corporation and it ought to have held that the accident occurred because of contributory negligence of the driver of the jeep. (D) The Hon’ble Tribunal erred in holding that the driver of the appellant corporation was negligent and not the claimant. The Hon’ble Tribunal erred in satisfying the some of the eye witnesses of the accident has been examined.” 5. The learned advocate for the appellant-GSRTC invited attention of the Court to judgment and award under challenge in these two First Appeals. The details of the accident are set out in para 4 of the judgment, which are reproduced hereunder for ready perusal: “4. .. .. The present incident has happened on 29.9.93 at about 8.00 PM. At that time both the injured as well as deceased were travelling in jeep no. GJM 7876. They were coming from Botad and proceeding towards Gadhda. The present incident has happened near village Goradaka. When the jeep reached near the scene of offence (sic., occurrence). .. .. The present incident has happened on 29.9.93 at about 8.00 PM. At that time both the injured as well as deceased were travelling in jeep no. GJM 7876. They were coming from Botad and proceeding towards Gadhda. The present incident has happened near village Goradaka. When the jeep reached near the scene of offence (sic., occurrence). It was being driven by jeep driver on the correct side of the road and that also with moderate speed. At that time, one ST bus no.GJ-1-Z-2229 was coming from the opposite direction, which according to the petitioners, was being driven by opponent no.2 Prakash Punabhai in a rash and negligent manner and that also with excessive and uncontrollable speed and on the wrong side of the road. Due to rash and negligent driving of ST driver, the front driver side wheel of the said ST bus burst at the scene of offence (sic., occurrence) and the said bus went towards the jeep and it dashed with the jeep. As a result thereof, including jeep driver, 3 persons died instantaneously, while 2 persons sustained serious injuries. After this incident, ST driver went to Gadhada police station along with his ST Depot Manager, Gadhada and ST conductor and lodged his information at Gadhada police station. Thereafter, the investigation was carried out and PM examinations were performed on the dead body of deceased. Injured persons were brought to CHC Gadhada and thereafter, they were transferred to Sir T. Hospital, Bhavnagar for further and better treatment. According to the legal heirs and representatives of deceased, they sustained serious damages and a great loss because entire family of both the deceased persons were fully dependent upon the income of the deceased. According to the injured person, they also sustaiend fracture injuries on their left hands and also sustained permanent disablement. According to them they have spent a huge amount for the treatment of their injuries and operations were performed. According to the injured person, they also sustaiend fracture injuries on their left hands and also sustained permanent disablement. According to them they have spent a huge amount for the treatment of their injuries and operations were performed. According to them they were not in a position to do their work for a pretty long time and thus, according to them they have also sustained serious damages and a great loss and therefore, they have field their respective claim petitions as stated above.” The MACPs were contested by GSRTC by filing written statement, exh.15 in MACP No.347/ 1993, wherein it was contended that the claimants are not admitted and besides it was contended that, “It is contended that ST corporation is not liable for the damages, if any, caused to the petitioners because ST driver was neither rash nor negligent in his driving. It is contended that there were number of passengers in the jeep and jeep was being driven completely on the wrong side of the road and that also with full speed and this incident has happened due to rash and negligent driving of jeep driver only. It is contended that the jeep was being driven in a zigzag manner and it was over crowded. Moreover, upon seeking the jeep coming from the opposite direction with full lights, ST driver gave a light signal but jeep driver did not respondent and ST driver therefore, halted the bus at the extreme left side, but jeep left its side, crossed over the wrong side and dashed violently at the right bumper of the said bus and extensive damage was caused to the right side of the bus. It was damaged to the tune of Rs.12000/-. It is contended that the incident has taken place on account of negligence on the part of jeep driver. It appears that the opponents have denied all the averments regarding rash and negligent driving of ST bus driver, the age, income of the deceased as well as injured persons and also the injuries and permanent disablement sustained by the injured persons and quantum of compensation as averred by the petitioners and they have prayed to dismiss all the petitions with cost.” 6. The Hon’ble Tribunal considered oral evidence of the petitioners, the details of which are set out in para 7 of the judgment and award and documentary evidence which was led before the Hon’ble Tribunal in four MACPs which is set out in para 8. For ready perusal details of documentary evidence are set out in para 8 is reproduced hereunder: “8. Thereafter, the documentary evidence has been adduced in all these petitions in the following manner: MAC petition no.347/ 93. 1. complaint, exh.19 2. panchnama, exh.20 3. inquest panchnama of deceased, exh.21 4. PM notes, exh.22 5. birth date certi of deceased, exh.23 6. certificate for another name of dec. exh.23 7. land revenue record, exh.25 to 30 8. particulars of LIT policy of deceased, exh.31 9. LIC premium receipt, exh.32 10. LIC insurance policy of deceased, exh.33 11. Its claim form, exh.34 MAC petition no.89/ 94 1. PM notes of deceased, exh.36 2. birth date certi of Dec. exh.37 3. death certificate of Dec. exh.38 4. LIC premium receipt exh.39 5. Letter of insurance co. exh.40 6. LIC policy of dec. exh.41 7. certificate of Peerless Finance Co., exh.42. MAC petition no.117/ 94: 1. D/card of Sir. T. Hospital exh.44 2. another D/card exh.45 3. injury certificate exh.46 4. disability certi. Exh.47 5. hospital case papers exh.48 6. reports, bills, etc. exh.49 7. certificate of estimated expenses for removing plates, exh.50 8. X-ray plate exh.51. MAC petition no.95/94 1. hospital discharge card exh.53 2. certificate of Dr.Dholakia exh.54 3. medical bills, prescriptions etc exh.55 to 57 4. accident form report exh.6l.” 7. The Hon’ble Tribunal then appreciated the evidence led before it and recorded its finding in para 10. The important question about negligence was considered in this para 10 on the basis of the evidence led before the Hon’ble Tribunal including that of exh.63 and deposition of the driver of the GSRTC bus and the Hon’ble Tribunal after threadbare analysis of evidence led before it finally came to the conclusion that, “Considering all the facts, evidence and circumstances of the case, I am of the opinion that ST bus driver was contributory negligent at the ratio of 70%, while jeep driver was contributory negligent at the ratio of 30%. Hence I decide issues no.1 & 2 in the affirmative accordingly.” 8. Hence I decide issues no.1 & 2 in the affirmative accordingly.” 8. From the memos of the First Appeals it is clear that GSRTC has not challenged the judgment and award seriously on any count other than the ground of contributory negligence/apportionment of negligence between two drivers. Though in ground (G) income of the claimants is challenged and in ground (H) rate of interest is also mentioned as one of the factor to be considered by this Court and last, but not the least in ground (K) amount awarded under the head, ‘loss of estate’ is also mentioned. The learned advocate focussed attention on the ratio of negligence in which the Hon’ble Tribunal held that both the drivers were contributorily negligent which had resulted into the accident. 9. Learned advocate Mr. Gautam Joshi appearing for opponents no.1 to 5 – original claimants in First Appeal No.4486 of 1996 and opponents no.1 to 4 – original claimants in First Appeal No.4487 of 1996, effectively submitted that it is not open to GSRTC to challenge the finding of the Hon’ble Tribunal in the matter of negligence and ratio in which negligence is apportioned between two drivers when GSRTC has accepted the said finding and apportionment in three other MACPs. The learned advocate for GSRTC is not able to explain as to why GSRTC has chosen to file First Appeal only in the matter of two MACPs and not other MACPs. It is trite law that when GSRTC has challenged judgment and award of the Hon’ble Tribunal in two MACPs and not in other MACPs, though it was decided by a common judgment and award, challenge has to fail and it must fail only on this short ground. Besides that it will be appropriate to refer to the discussion in that regard, which is found in para 10, wherein the Hon’ble Tribunal has considered deposition of GSRTC-exh.63. The relevant portion reads as under: “ .. .. He has deposed that jeep was coming in a zigzag manner and that also with full speed. According to him he was driving his bus on the correct side of the road. He has deposed that on seeing the jeep coming from the opposite direction he applied the brake with full force and there were brake marks upto 40 to 50 fts. At that time jeep dashed with the bus. According to him he was driving his bus on the correct side of the road. He has deposed that on seeing the jeep coming from the opposite direction he applied the brake with full force and there were brake marks upto 40 to 50 fts. At that time jeep dashed with the bus. As a result thereof the tyre of the bus burst at the scene of offence (sic., occurrence) and 3 persons and died there. He has deposed that immediately after the incident he went to the police station at Gadhada and lodged his information. In his cross-examination he has deposed that he had seen the jeep coming at a distance of 500 ft and he could see that jeep was being drive in zigzag manner right from the beginning. He also felt that jeep will cause accident today. He has deposed that he was driving his bus at the speed of 50 Km/ hr. He had deposed that no other vehicle was coming on the road at that time. He has also deposed that ST depot manager Shri Trivedi of Gadhada and ST conductor of the said bus accompanied him at Gadhada police station. He has deposed that information was lodged by the depot manager Shri Trivedi and he i.e. ST driver signed on this information exh.19. .. ..” The Hon’ble Tribunal has then taken trouble to consider Panchnama of scene of offence (sic., occurrence) exh.21 and has categorically recorded that the driver of GSRTC bus has though deposed that he was not present when Panchnama of scene of occurrence was prepared by the Investigating Police Officer the same is found to contain averments to the effect that driver was present at the time of drawing Panchnama. The Hon’ble Tribunal has then appreciated the contents of the Panchnama of scene of occurrence wherein it is recorded that, “Of course, it transpires from the Panchnama that the ST Bus was lying left hand side of the road. The right front wheel of ST bus was lying at a distance of 3 fts away from the middle divider, i.e. white line of the road. Moreover, the front left wheel of the bus was lying on the left border of the road. However, the panchnama was prepared on the next day. It is to be noted that jeep driver died at the scene of offence. Moreover 2 persons also died there. Moreover, the front left wheel of the bus was lying on the left border of the road. However, the panchnama was prepared on the next day. It is to be noted that jeep driver died at the scene of offence. Moreover 2 persons also died there. Both the injured persons have deposed that this incident has happened due to negligence on the part of ST driver. It appears from the evidence on record that principle of “res ipsa loquitur” can be applied in the instant case. As the jeep driver is not alive, there is no question of examining him in this case. The present incident has happened during night hours at about 8.00 PM. Both the drivers ought to have driven their respective vehicles with utmost care and caution as they were also driving their vehicle on the State highway and that too in dark nights. The width of the road is 20 fts and easily two heavy vehicles can pass on at a time on the said road. However, the fact remains that both the vehicles dashed with each other. At right front side of both the vehicles there were extensive damage caused to both the sides. .. ..” 10. On having considered the detailed discussion and the aforesaid documentary evidence this Court is of the opinion that the appeals are without any merit and the same deserve to be dismissed. The First Appeals are accordingly dismissed. The judgment and award of the Hon’ble Tribunal is not interfered.