JUDGMENT : 1. This appeal under Section 173 of the Motor Vehicles Act, 1988 (“The Act” for short) is filed by the original claimants as appellants challenging the judgment and award dated 4.8.2006, passed by The Motor Accident Claims Tribunal (Main), Patan in MACP No. 278 of 2002, wherein the Tribunal dismissed the claim petition filed by the original claimants holding that, as the driver of motorcycle was sole negligent for occurrence of the said accident, tort feasor cannot take advantage of his own wrong. 2. The facts in brief are as under: 2.1. That on 17.3.1991, Ambalal @ Rehmatkhan Rathod with his wife Madhuben and son Ranjeet were travelling on his Hero Honda Motorcycle No.G C N 6699 from Mehsana to Ahmedabad. Shri Ambalal @ Rehmatkhan Rathod (hereinafter referred to as “the deceased”) was driving the motorcycle and wife Madhuben and son Ranjeet were sitting as pillion rider. It is case of the original claimants that, at that time one Matador No.GJ 2 T 6396 came with full speed in rash and negligent manner and by coming towards wrong side dashed with Hero Honda Motorcycle from front, for which the driver lost control and fell down. All three -driver and two pillion riders, sustained grievous injuries succumbed to the same. 3. For the said accident, the legal heirs of deceased filed Claim Petition under Section 166 of the Act seeking compensation of Rs.5 lacs. It was case of the original claimants that accident occurred on account of negligence on part of driver of Matador. It was further the case of the original claimants that by doing masonry work, the deceased was earning Rs.3,000/- p.m. Upon claim petition being filed, notices were issued. Insurance Company of Matador as well as Insurance Company of Motorcycle both filed their respective written statements. The Tribunal after hearing the parties and upon consideration of evidence on record held that the driver of motorcycle No.G C N 6699 was sole negligent for occurrence of the accident and, therefore, the claimants are not entitled for the claim as sought for. The Tribunal exonerated the Insurance Company of Matador as the driver of Motorcycle was held 100% negligent for the said accident. 4. Aggrieved by the dismissal of the claim petition, present appeal is filed by the original claimants as appellants. 5. Heard Mr. Ravindra R. Bharai for Mr. The Tribunal exonerated the Insurance Company of Matador as the driver of Motorcycle was held 100% negligent for the said accident. 4. Aggrieved by the dismissal of the claim petition, present appeal is filed by the original claimants as appellants. 5. Heard Mr. Ravindra R. Bharai for Mr. R.J.Goswami, learned advocate for the appellants (original claimants), Mr. Vibhuti Nanavati, learned advocate for the Insurance Company of the Motorcycle and Mr. Sunil Parikh, learned advocate for the Insurance Company of the Matador. 6. Appearing for the appellants, Mr. Bharai, submitted that the Tribunal is in error in not appreciating that the panchnama of scene of accident shows that the driver of Matador was also negligent for occurrence of the accident. Referring to the decision in Criminal Case No. 1912/1991 at Exh.36, he submitted that charge-sheet was issued against the driver of Matador which shows that the driver of Matador was also negligent to certain extent for occurrence of the accident. He, thus, submitted that the panchnama and the charge-sheet issued to the driver of the Matador supports the case of the appellants that the driver of Matador was also negligent for occurrence of the accident. He, thus, submitted that the judgment and award of the Tribunal dated 4.8.2006 being erroneous deserves to be quashed and set aside. 7. On the other hand, learned advocate Mr. Nanavati for the Insurance Company of the Motorcycle submitted that before the Tribunal three claim petitions were filed by the original claimants, (i) in the case of deceased Ambalal @ Rehmatkhan Rathod seeking compensation of Rs. 5 lacs (MACP No.278 of 2002, (ii) in case of deceased Madhuben, wife of deceased Ambalal @ Rehmatkhan Rathod seeking compensation of Rs. 3 lacs (MACP No. 277 of 2002 and (iii) in case of deceased Ranjeet son of deceased Ambalal @ Rehmatkhan Rathod seeking compensation of Rs.75,000/- (MACP No.276 of 2002). The Tribunal after hearing the parties and upon appreciating the evidence on record by common judgment and award dated 4.8.2006, has decided all three claim petitions by holding that the driver of the motorcycle i.e. Ambalal @ Rehmatkhan Rathod was sole negligent for the occurrence of the said accident. The Tribunal after hearing the parties and upon appreciating the evidence on record by common judgment and award dated 4.8.2006, has decided all three claim petitions by holding that the driver of the motorcycle i.e. Ambalal @ Rehmatkhan Rathod was sole negligent for the occurrence of the said accident. As no appeal has been filed challenging the common judgment and award dated 4.8.2006 in MACP No. 277 of 2002, in case of wife - Madhuben and MACP No. 276 of 2002, in case of son – Ranjeet, the present appeal filed by the original claimants is not maintainable on the ground that principle of res judicata will be applicable since the finding recorded in other two claim petitions has been accepted by the original claimants. In support of his submission, he relied upon the decision of this court in the case of Bhagwatiben Wd/O Laxmichand @ Babulal Vardhaji Mali & Anr. vs. Ramabhai Bhikhabhai Parmar & Anr. in First Appeal No. 5871 of 2008 decided on 17.12.2021 . 8. He further submitted that the Tribunal is correct in holding that the driver of the motorcycle was 100% negligent for occurrence of the accident. In support of his submission, he relied upon panchnama -Exh. 45 and submitted that the scene of accident considered by the Tribunal shows that the driver of the motorcycle was sole negligent as by no stretch of imagination could establish that the motorcycle went all through 6 feet down the road after crossing 12 feet wide road. He thus submitted that the Tribunal has correctly appreciated Exh.45 and there being no error in the finding of the Tribunal, no interference is called for. He further submitted that as the driver of the motorcycle was held 100% negligent, the claim of the claimant is not maintainable as tort feasor cannot take advantage of his own wrong. He further submitted that the risk of driver of motorcycle is not covered under Section 147 of the Act as the driver of the motorcycle cannot be termed as 3rd party. He thus submitted that appeal filed by the original claimant being meritless deserves to be dismissed. 9. Mr. Sunil Parikh, learned advocate for the Insurance Company of Matador supported the arguments canvassed by learned advocate Mr. Nanavati. He thus submitted that appeal filed by the original claimant being meritless deserves to be dismissed. 9. Mr. Sunil Parikh, learned advocate for the Insurance Company of Matador supported the arguments canvassed by learned advocate Mr. Nanavati. He further submitted that vide impugned judgment and award dated 4.8.2006, the Tribunal upon appreciation of evidence on record is correct in holding that the driver of the motorcycle was sole negligent for the occurrence of the accident and therefore correct in exonerating the driver of Matador. 10. Heard learned advocates appearing for the respective parties and upon perusal of the record and proceedings, it is noticed that the Tribunal after considering the panchnama at Exh.45 has recorded that it is very hard to believe the facts stated in the claim petition by the original claimants that Hero Honda Motorcycle was going on the correct side of the road and while going on the correct side of the road one Matador came from opposite direction and dashed first with scooter and then with Hero Honda (the vehicle involved). On the contrary the scene of incident recorded in panchnama states that the Hero Honda Motorcycle was lying 6 feet down kacha road which is after 12 feet wide high way road towards Ahmedabad. Therefore, it is difficult to believe that the Matador coming from the opposite direction dashed the motorcycle in such a way that it crossed the 12 feet wide road and thereafter went 6 feet down kacha road. There is no other document to suggest that the Matador dashed the driver of the motorcycle. Therefore, I am in agreement with the findings of facts recorded by the Tribunal that the accident occurred on account of sole negligence of driver of motorcycle and there was no involvement of Matador in the accident. Therefore, in my opinion, the Tribunal has correctly held that the motorcycle was 100% negligent and exonerated driver of Matador. Even in the decision rendered in Criminal Case No. 1912 of 1991 at Exh.36, the driver of Matador has been exonerated from the charges. 11. Further in the decision relied on by learned advocate Mr. Nanavati in First Appeal No.5871 of 2008 in paragraphs 7, 8 and 9 it is held as under: “7. We have perused the original record and proceedings and have extensively gone through the observations made by the Tribunal. 11. Further in the decision relied on by learned advocate Mr. Nanavati in First Appeal No.5871 of 2008 in paragraphs 7, 8 and 9 it is held as under: “7. We have perused the original record and proceedings and have extensively gone through the observations made by the Tribunal. The Hon'ble Apex Court in the case of Machindranath Kernath Kasar (supra) has observed thus:- “36. The appellant was fully aware of his legal liability. He was involved in the criminal case. He deposed in the claim applications filed by the injured persons who were travelling in the bus. He was fully aware that unless he proves his innocence in regard to the charge of rash and negligent driving, he would be held liable therefor, particularly when he himself had filed the claim petition. It might have been a matter of sharing of liability between him and the driver of the truck. He was aware that his plea that he was not negligent has been negatived. He, for all intent and purport, therefore, was a party to the earlier proceedings. If he intended to get rid of the findings recorded by the Tribunal, he could have preferred an appeal thereagainst. He did not choose to do so.” 8. The very said judgment has been followed by the Division Bench judgment of this Court in First Appeal no.1324 of 2010 in identical fact situation, wherein it is observed thus:- “14. A useful reference can be also be made to the judgment of the Hon'ble Apex Court reported in 2008 (13) SCC 198 – Machindranath Kernath Kasar v. D.S.Mylarappa and ors. There also referring to the background of the facts, though it is not focused on the resjudicata but it has considered the similar circumstances while deciding about the aspect of opportunity of hearing and therefore it cannot be said that the Tribunal has committed any error while finding the conclusion with regard to the accident on the aspect of negligence in the present case.” 9. It is an admitted position that the accident occurred between Maruti Car and the truck, wherein two claim petitions were filed the present one being MACP no.709/89 and other MACP No.710/89 filed by the heirs of Ashokkumar who died in the same accident. It is an admitted position that the accident occurred between Maruti Car and the truck, wherein two claim petitions were filed the present one being MACP no.709/89 and other MACP No.710/89 filed by the heirs of Ashokkumar who died in the same accident. The Tribunal, after considering the evidence on record, has come to the conclusion that the driver of Maruti Car in the present case was negligent to the extent of 75% and the driver of the truck was negligent to the tune of 25%. The said finding is, though challenged in this appeal, no appeal is filed against the findings arrived at by the Tribunal in claim petition no.710/89. The same would amount to accepting the said finding apart from the principle of res judicata following the judgment in the case of Machindranath Kernath Kasar (supra) as well as the Division Bench judgment of this Court in First Appeal no.1324 of 2010, the appellants – original claimants cannot be permitted to raise that issue in the present appeal having accepted the same in other MACP no.710/89.” 12. Applying the same principle, in my opinion once the findings recorded in other two claim applications having been accepted by the original claimants, it is not open for them to challenge the said finding in another claim petition arising out of the same accident and from common judgment and award dated 4.8.2006. The principle of res judicate will be applicable and, therefore also in my opinion it is not open for the claimants to challenge the aspect of negligence as held by the Tribunal by filing the present appeal. 13. For the aforestated facts and reasons, present appeal of the appellants is dismissed. However, it made clear that any amount deposited by the insurance company of the matador, in any of the claim petitions and disbursed to the claimants shall not be recovered. 14. Registry is directed to transmit back the Record and Proceedings of the case to the concerned Tribunal forthwith. However, there shall be no order as to costs.