AI Structured Summary
Not yet generated for this judgment
Judgment
Hasmukh D. Suthar, J
(1) Since both these appeals are arising out of the same accident and challenge is made to the common judgment and decree passed by the Motor Accident Claims Tribunal, they are being heard together and are being decided by this common judgment.
(2) Feeling aggrieved and dissatisfied with the common judgment and award dated 23.11.2021 passed by learned Motor Accident Claims Tribunal, Rajkot, (hereinafter referred to as "the Tribunal" for short), in Motor Accident Claim Petition No.972/2015, the appellants – Insurance Companies have preferred present appeals under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for short) as the Tribunal has been pleased to hold both the drivers of offending vehicle equally liable for the accident.
(3) Heard Mr. Rathin P. Raval, learned Advocate for the appellant – The New India Assurance Co. Ltd. in First Appeal No.1085/2022 and Mr. Vibhuti Nanavaty, learned counsel for the appellant – United India Insurance Co. Ltd. in First Appeal No.1340/2022. Mr. Hemal Shah, learned counsel for the claimants has remained absent. Though served, none appears for respondent Nos.6 and 7. Perused the original record and proceedings.
(4) It is the case of the claimants that on 12.06.2015, the deceased was going as a passenger in luxury bus bearing No.GJ-10-W-9585 and when the bus reached near the place of accident, collided with one truck bearing No.GJ-23-V-2544 from back side. As a result, the deceased received fatal injuries. Therefore, the claimants have filed MAC Petitions seeking compensation. After appreciating the evidence produced on record the learned Tribunal was pleased to partly allowed both the claim petitions.
(5) Mr. Rathin Raval, learned counsel for The New India Assurance Co. Ltd.in First Appeal No.1085 of 2022, has submitted that the Tribunal committed a grave error in saddling the insurance company with 50% liability. It is contended that the Tribunal ought to have held that the accident occurred due to the sole negligence of the stationary truck parked on the service road; that the truck was lying unattended without any signals or other precautionary measures at about 03:30 hours during the night. There was no negligence on the part of the luxury bus. However, the Tribunal erred in assessing 50% negligence on the part of the luxury bus in causing the accident. It is further submitted that the driver of the bus has deposed that the truck was parked on the left side of the road without any parking reflectors, signals, or indicators, and therefore, the accident occurred due to the sole negligence of the driver of the stationary truck. The driver of the truck failed to observe traffic rules and regulations, more particularly Section 122 of the Motor Vehicles Act and Rule 190 of the Motor Vehicles Rules, 1989, as he had abandoned the truck without any reflectors or safety measures, that too at 03:30 hours in mid-night on a highway road. Therefore, in light of the decision of the Hon’ble Supreme Court in National Insurance Company Ltd. v. Chamundeshwari Devi, reported in (2021) 9 SCC 439, it is submitted that the evidence led before the Tribunal is required to be considered rather than placing reliance solely upon the police papers. Hence, Mr. Raval, learned counsel for the appellant - The New India Assurance Co. Ltd. has requested that the appeal be allowed as prayed for.
(6) Mr. Vibhuti Nanavaty, learned counsel for the appellant in First Appeal No.1340 of 2022, has submitted that the driver of the luxury bus was solely negligent in causing the accident. It is contended that, at the time of the accident, the truck was parked on the extreme left side of the service road and, upon consideration of the panchnama produced on record, it clearly emerges that the accident might have occurred while the driver of the luxury bus was overtaking another vehicle, which is impermissible during night hours, particularly when the bus was carrying passengers. It is further submitted that the driver of the luxury bus was required to take due care while overtaking other vehicles and there was no justification for driving the bus on the extreme left side of the road. On perusal of the panchnama and the damage caused to the truck, it appears that the truck was stationed on the left side of the service road and was dragged for about 40 feet, and the left side of the luxury bus was completely damaged up to three seats. Hence, Mr. Vibhuti Nanavaty, learned counsel has requested that the driver of the luxury bus be held 100% negligent in causing the accident.
(7) Having heard learned counsel for the respective parties and upon perusal of the material placed on record, it appears that both vehicles are shifting 100 % blame to each other for causing the accident. Therefore, the only issue under challenge in these appeals is with regard to negligence. This Court has examined the evidence produced on record concerning the apportionment of negligence between the two vehicles.
(8) In First Appeal No.1085 of 2022, the appellant – The New India Assurance Co. Ltd. examined the driver of the luxury bus - Jayendra Vadher at Exh.56, wherein, he has deposed that he was driving the bus at a moderate speed while observing traffic rules, and that the truck was lying on the road during night hours without any reflector or precautionary measures on the express highway, due to which the accident occurred only because of carelessness on part of the truck driver. During cross-examination, it has established that a complaint in respect of the accident was registered against the said witness, who is the bus driver, and that he had disclosed these facts for the first time in his affidavit before the Tribunal. On the basis of the charge-sheet as well as the panchnama produced on record, the Tribunal considered the issue of negligence in light of the evidence adduced. The panchnama reveals that the accident occurred at about 03:30 hours during the night on an express highway, where a truck bearing registration No. GJ-23-V-2544 was parked on the service road near an iron barrier. The truck was found damaged on the rear portion on the driver side, and due to the impact, the barrier on the service road was also damaged up to 40 feet. An iron sheet of the luxury bus was found entangled in the rear tyre of the truck. Further, the left side of the luxury bus was damaged up to three seats. The truck was found stationed on the extreme left side of the service road, and the rear portion of the truck was damaged. It was also found that the truck was parked without any reflector or indicator and without observing Rules 190 and 191 of the Motor Vehicles Rules. Considering the nature of damage to the bus as well as the contents of the panchnama, it appears that the driver of the luxury bus had no reason to drive such a heavy vehicle in a rash and negligent manner on the left side of the service road, particularly during late night hours. At the same time, while driving a bus during late night hours and that too while carrying passengers, the driver of the luxury bus was required to exercise a higher degree and standard of care.
(9) Further, as per Section 121 of MV Act, the driver of the vehicle shall make such signals on such occasions and as per Section 122, no person incharge of the motor vehicle shall cause or allow the vehicle or any truck to be abandoned or to remain at rest at any public place which is likely to cause danger, obstruction or undue inconvenience to the other users of road or the public place. Under Sections 126 and 127(2) of the MV Act, driver of stationary vehicle is duty bound to immediately remove such vehicle from the public place by towing service or try to remove the obstruction as per Regulation 15 of Rules of Road Regulations of 1989 which was also prevailing on the date of the incident and every driver of motor vehicle shall park the vehicle in such a way that does not cause or is not likely to cause danger/obstruction or any undue inconvenience to the other road users and it cast the duty on the driver of the vehicle that vehicle shall not be parked at or near the road crossing or on the main road.
(10) In the case on hand, the driver of the bus failed to take reasonable care to avoid an unexpected situation. Considering the aforesaid facts, the Tribunal, taking into account the size of the vehicle as well as the fact that the truck was parked without displaying or reflecting any indicator and in violation of Rules 190 and 191 of the Motor Vehicles Rules, held the stationary vehicle also liable to the extent of 50% for causing or contributing to the accident. In such facts, as both the vehicles are equally responsible for causing the accident, the Tribunal has rightly held both vehicles equally liable, and the reasons assigned by the Tribunal are just and proper and not committed any error.
(11) For the foregoing reasons, both the appeals fail and are hereby dismissed. Record and proceedings be sent back to the concerned Tribunal forthwith.