JUDGMENT : (Maulik J. Shelat, J.) 1. Today, when the matter was called out, the learned advocates appearing for the respective parties, urged this Court to take up the matter for final hearing as according to them, the issue involved in the present appeal, does not require much deliberation as it is covered by various decisions of Hon’ble Supreme Court of India. So, with the consent of the learned advocates of the respective parties, the present appeal is taken up for final hearing. 2. Admit. Learned advocates for the respective parties waive service of notice of admission of present appeal. The presence of rest of respondents is not required for adjudication of the appeal as their interest is already protected by respective respondent insurance companies. 3. The present appeal is filed by the appellants (hereinafter referred to as “Original Claimants” for the sake of brevity) under Section 173 of the Motor Vehicle Act (hereinafter referred to as “the Act”), against the judgment and award dated 29.01.2018 passed by Motor Accident Claims Tribunal (Auxi.), Vadodara in Motor Accident Claim Petition No.690 of 1998. Brief Facts of the Case 4. The brief facts of the case are as under:- 4.1 That on 14.02.1997, the deceased - Kamleshbhai Patel along with others, was going in a Maruti Van no.GJ-06-K-2252, which was driven by deceased – Kamleshbhai in moderate speed. When they reached near village Navapura, one truck bearing Registration no.GJ-1-V-4417 came and dashed with the said Maruti Van. The deceased - Kamleshbhai as well as other occupants of Maruti Van has sustained serious injuries but deceased - Kamleshbhai succumbed to such injuries. 4.2 The legal heirs of deceased - Kamleshbhai has preferred an application under Section 166 of the Motor Vehicles Act in Motor Accident Claim Petition No.690 of 1998, seeking compensation of Rs.26,00,000/- before Motor Accident Claims Tribunal against driver, owner and insurer of the Truck no.GJ-1-V- 4417 for death of deceased - Kamleshbhai, which was arising out of use of this motor vehicle. 4.3 The other occupants of Maruti Van no.GJ-06-K-2252, who have sustained injuries, appear to have independently preferred their respective claim petitions being Motor Accident Claim Petition Nos.691 of 1998, 692 of 1998 and 693 of 1998 before the very Tribunal against driver/owner/insurance company of aforesaid vehicles involved in the accident. 4.3 The other occupants of Maruti Van no.GJ-06-K-2252, who have sustained injuries, appear to have independently preferred their respective claim petitions being Motor Accident Claim Petition Nos.691 of 1998, 692 of 1998 and 693 of 1998 before the very Tribunal against driver/owner/insurance company of aforesaid vehicles involved in the accident. 4.4 After appreciating the evidence on record, the learned Tribunal has found both the drivers negligent for causing the accident and thereby, held the driver of truck no.GJ-1-V-4417 80% negligent, whereas driver of Maruti Van was found 20% negligent i.e., deceased - Kamleshbhai. 4.5 So far as quantum of compensation is concerned, after considering the documentary evidence submitted by Claimants to prove the income of deceased - Kamleshbhai, the learned Tribunal has worked out compensation of Rs.10,62,600/-, out of which, a contributory negligence of deceased-Kamleshbhai @ 20% was deducted. Thus, the learned Tribunal has in all awarded Rs.8,49,500/- together with 9% interest thereon from the date of petition till realisation in favour of claimants to be recovered from original opponent nos.1, 2 and 3 i.e., respondent nos.1, 2 and 3 herein. 5. The claimants are not satisfied with the compensation awarded to them and also aggrieved by the holding 20% contributory negligence of the deceased - Kamleshbhai to the accident preferred this appeal. Submission of the Appellants (Original Complainants) 6. Learned advocate for the Original Claimants, Mr. Karna H Dhomse, has vehemently submitted that the learned Tribunal has committed a gross error in holding deceased 20% negligent to the accident that too in absence of any contrary evidence led by opponents. He would submit that when the opponent no.1 - driver of the Truck, has not been examined before the learned Tribunal then an adverse inference ought to have been drawn against him. He would further submit that merely the fact that there is a head on collision between Maruti Van and the Truck, the learned Tribunal has wrongly considered contributory negligence of deceased. He would further submit that compensation, which has been awarded by learned Tribunal, so far as conventional amount is concerned, is not in consonance with law laid down by Hon’ble Supreme Court of India in a case of National Insurance Company Ltd. Vs. He would further submit that compensation, which has been awarded by learned Tribunal, so far as conventional amount is concerned, is not in consonance with law laid down by Hon’ble Supreme Court of India in a case of National Insurance Company Ltd. Vs. Pranay Shethi, reported in (2017) 16 SCC 680 and Magma General insurance Company Limited vs. Nanu Ram Alias Chuhru Ram, reported in (2018) 18 SCC 130 and so he urged this Court to grant just and proper compensation in accordance with law. Thus, requested to allow the appeal. Submission of the Respondent/s 7. Per contra, learned advocate, Mr Yogi K Gadhia appearing for the respondent no.3 - Insurance Company of Truck no.GJ-1-V- 4417 would submit that there is no error committed by the learned Tribunal in holding 20% contributory negligence of the deceased as there was a head on collision between 2 set of vehicles. He would further submit that so far as other connected claim petitions, filed by occupants of Maruti van, against both set of tort feasors i.e., Driver, owner and insurance company of Truck and Maruti Van, are concerned, there is a common judgment delivered by the learned Tribunal holding both drivers negligent to the extent of 80% and 20% (Driver of the truck and Driver of Maruti Van respectively) and having common finding recorded qua the issue of negligence in those petitions arising out of the same incident, principal of constructive res judicata would comes into play. The present appellants cannot be permitted to question contributory negligence of the deceased. According to him, when Claimants have not questioned contributory negligence of deceased in cognate cases, they cannot question it in the present appeal. 8. In the present appeal, so far as granting of compensation under conventional heads is concerned, he has fairly submitted to the Court that an appropriate amount may be awarded to the claimants as per the aforesaid decisions of Hon’ble Supreme Court cited by learned advocate of the claimants hereinabove. 9. Learned advocate Ms. Ami N Bhatt appearing for respondent no. 6 - Opponent no.6 would submit that the insurance company of the Mauri Van, is not liable to pay any compensation to the original Claimants. So, she has supported such finding of tribunal but so far other issues are concern, left to be decided by this court in accordance with law. 10. Ami N Bhatt appearing for respondent no. 6 - Opponent no.6 would submit that the insurance company of the Mauri Van, is not liable to pay any compensation to the original Claimants. So, she has supported such finding of tribunal but so far other issues are concern, left to be decided by this court in accordance with law. 10. No other and further submissions are being made by the respective parties. Point of Determination 11. The issues, which have arisen for consideration of this Court, are as follows:- i) Whether in the facts and circumstances of the case, the learned Tribunal has committed any error in holding deceased - Kamleshbhai 20% contributory negligence for causing the accident, is just and proper? ii) Whether in the facts and circumstances of the case, having not challenged other cognate judgment and award passed by the Tribunal, holding deceased - Kamleshbhai contributory negligent to the extent of 20%, can claimants be allowed to question the issue of negligence so decided by the Tribunal?. iii) Whether in the facts and circumstances of the case, just and reasonable compensation has been awarded by the Tribunal under the conventional heads?. Appreciation of Submissions 12. Heard learned advocates appearing for the respective parties. 13. We have gone through the impugned judgment & award and also carefully examined the oral and documentary evidence produced by the respective parties before the Tribunal. The copies of such evidence were made available by learned Advocate of Appellants for adjudication of present appeal. 14. So far point Nos. i and ii are concerned, they are required to be considered together as interconnected. 15. It is undisputed fact that deceased along with other occupants of the Maruti Van, was going on 14.02.1997 and Maruti Van was driven by deceased – Kamleshbhai, which was dashed by Truck no.GJ-1-V-4417. There were 4 claim petitions, which came to be filed by the victims of the alleged accident i.e., legal heirs of deceased – Kamleshbhai - the driver of Maruti van and 3 injured claimants happens to be occupants of Maruti Van. It further appears that common evidence has been laid by parties before the learned Tribunal and by way of common impugned judgment, the learned Tribunal has decided the issue no.1 i.e., Negligence, whereby, the learned Tribunal has found the deceased - Kamleshbhai 20% contributory negligent for causing the accident. It further appears that common evidence has been laid by parties before the learned Tribunal and by way of common impugned judgment, the learned Tribunal has decided the issue no.1 i.e., Negligence, whereby, the learned Tribunal has found the deceased - Kamleshbhai 20% contributory negligent for causing the accident. It is an undisputed fact that initially, the driver of Maruti Van i.e., deceased - Kamleshbhai was joined in claim petitions filed by occupants of Maruti Van but later on deleted being died. Nonetheless, those Claimants, who were occupants of Maruti Van, had maintained the claim petitions both against Driver, owner and Insurer of Truck as well as owner and Insurer of Maruti Van and accordingly, respective tort feasors have been held liable to pay compensation by way of common judgement albeit separate award. 15.1 When the claimants are aware of the fact that by way of common judgment, the Tribunal has found 20% contributory negligence of the deceased - Kamleshbhai for causing the accident and if they are aggrieved by the said decision of the learned Tribunal on question of negligence then they ought to have challenged the awards passed in cognate claim petitions by filing independent appeals. If, this Court, in the present appeal, decides the issue of negligence in favour of claimants by holding driver of the truck solely negligent for causing accident then there would be a conflict of awards on issue no.1 i.e., negligence, even though accident is common in all these petitions. 15.2 At this stage, it is profitable to rely upon the decision of Hon’ble Supreme Court of India in the case of Machindranath Kernath Kasar vs D.S. Mylarappa & Ors reported in (2008) 13 SCC 198 wherein in para-22 & 23 held as under that : “22. 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. 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 there against. He did not choose to do so. 23. This case gives rise to an anomalous situation. The Corporation has been found to be liable to pay the amount of compensation claimed by the passengers of the bus only because the appellant was found to be rash and negligent in driving. The law cannot be construed in such a manner so as to lead to such a conclusion as the same court in this case which was being heard simultaneously held that he was not negligent and the driver of the truck was negligent so as to fasten the liability also on the owner of the truck. When an accident has taken place, the court was required to hold either the driver of the bus or the truck responsible; no case of contributory negligence having been made out. The result would be that the Corporation would be liable to pay compensation in both the cases although findings in each of them were contradictory to or inconsistent with each other. Similar would be the position of the driver of the truck. In one case, he for the same act would stand exonerated and in another case, liability to pay compensation would be fastened on him. Precisely that was the purpose for which the Tribunals heard both the matters together and also delivered judgments one after the other. It was necessary to apply the comity or amity or the principles analogous thereto. The issue to be examined herein is whether in the claims cases before the Motor Vehicles Accident Claims Tribunal, the driver of a vehicle who has been accused of negligence is a necessary party to the proceedings or whether the owner alone can be impleaded. In this case, two sets of claims cases were heard together, one filed by the passengers of the KSRTC bus and the other filed by the driver of the said bus. In this case, two sets of claims cases were heard together, one filed by the passengers of the KSRTC bus and the other filed by the driver of the said bus. In short, unless the finding of negligence in the claim cases of the passengers was negatived, in the claim cases filed by the driver himself, the said finding of negligence on the part of the driver could not have been varied.” 16. Thus in view of the stated facts and law, principle of constructive res judicata would apply to the facts of the present case and hence, we are unable to accept submission of claimants in regards to the decision of learned Tribunal on question of negligence as in absence of challenge other awards arising out same accident, claimants could not have questioned issue of negligence in present appeal. 17. so far as last point, for enhancement of the amount of compensation so awarded under conventional heads, in light of aforesaid decisions of Hon’ble Supreme Court of India in the case of National Insurance Company Ltd. Vs. Pranay Shethi (supra) and Magma General insurance Company Limited vs. Nanu Ram Alias Chuhru Ram requires to be revisited, and hence, each claimants would require to be paid Rs.48,400/- towards consortium i.e. spousal and filial consortium and also requires to pay Rs.18,500/- each towards lost to estate and funeral expenses. 18. Therefore, total compensation would be as under, which the claimant/s is/are entitled to get. Particular Amount (Rs.) Loss of dependency 9,82,600/- Pain, shock and suffering 10,000/- Loss of Consortium (48000 x 3 claimants) 1,45,200/- Loss of Estate 18,150/- Funeral Expenses 18,150/- Total… 11,74,100/- 19. As we have considered the aspect of 20% contributory negligence of deceased - Kamleshbhai so decided by learned Tribunal is just and proper then out of Rs.11,74,100/-, 20% contributory negligence of deceased requires to be sliced down i.e. Rs.2,32,820/-, thus, the claimants would be entitled for a total compensation of Rs.9,39,280/-. The claimants have already received a sum of Rs.8,49,500/- then now, they are entitled to receive Rs.89,780/-. Conclusion. 20. Thus, in view of the above stated facts and circumstances of the case, the present appeal is partly allowed. 21. The claimants are entitled to receive an additional compensation of Rs.89,780/- with 9% interest thereon from the date of petition till realisation from responded nos.1, 2 and 3 herein (Original opponent nos. 1,2 and 3). 22. Conclusion. 20. Thus, in view of the above stated facts and circumstances of the case, the present appeal is partly allowed. 21. The claimants are entitled to receive an additional compensation of Rs.89,780/- with 9% interest thereon from the date of petition till realisation from responded nos.1, 2 and 3 herein (Original opponent nos. 1,2 and 3). 22. The respondent no.3 - insurer of Truck no.GJ-1-V-4417, is advised to deposit an additional compensation as stated herein above within a period of 4 weeks from the date of receipt of copy of this order. 23. The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimant, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure. 24. While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law 25. Record and proceedings, if any, be send back. No order as to costs.