Oriental Insurance Co. Ltd. vs Ms. Seema Chouhan and Others

The Insurance Company has filed this appeal u/s 173 of the Motor Vehicles Act, 1988 against the award dated 30.7.2004 of the Motor Accident Claims Tribunal, Neemuch in M.V. Case No. 13 of 2003 by which the respondents as L.Rs. of deceased Nandkishore Chouhan have been granted compensation in a sum of Rs. eleven lakh on account of the death of Nandkishore in a motor accident while he was travelling in a Maruti Car.

The accident occurred while Nandkishore was going as a passenger in a car driven by one Nemichand Patidar which collided with a druck bearing registration No. MP-14-G-7672 parked on the road. It was stated that its driver NA No. 1 Ramesh had parked it in a haphazard manner without switching on the parking lights or placing any other sign for the safety of the traffic on the road with the result the Maruti Car in which the deceased was travelling, collided with the Truck causing injuries over the head of Nandkishore who died instanteously.

Deceased Nandkishore was a Headmaster in a Middle School drawing a salary of Rs. 8,495. He was aged 40 years at the time of his death. On the basis of his income and his status, compensation was calculated and a sum of Rs. eleven lakh was awarded inclusive of loss of consortium, funeral expenses, loss of estate, etc.

The contention of the learned Counsel for the Insurance Company is that since the Truck was parked by the side of the road and stones had been duly kept around to make it known to the commuters that the truck was parked on the road and the fact that the Maruti dashed from behind and that too on the left side of the truck, it clearly shows that it was the sole negligence of the driver of the Maruti Car that there was collision without there being any contribution to the mishap on the part of the truck driver. Under these circumstances, learned Counsel for the Insurance Company contended that the Insurance Company of the Truck could not have been saddled with the liability to pay compensation for the fault of the driver of Maruti Car and the respondents should have claimed the compensation, if at all, from the driver, owner and insurer, if any, of the Maruti Car in which the deceased was travelling.

Learned Counsel for the respondent Nos. 1 to 4 has submitted that the evidence on record clearly proved that it was on account of the sheer negligence of the driver of the truck that the truck was parked in such a way that it obstructed the road and no precautionary measures were taken to ensure that the said parked vehicle becomes visible to the on-coming traffic from a distance. The parking lights were not switched on; the Tarpaulin was covered in such a way that the backside of the truck also got covered concealing the light and reflectors and in view of the fact that it was a rainy day where it was necessary to take greater precautions, the driver neglected the vehicle on road and it was on a account of the fact that the vehicle was not visible, the accident occurred.

We have bestowed our anxious consideration to the contentions of the learned Counsel. We find that in view of the findings of the Tribunal that it was on account of sheer negligence of the truck driver in parking the truck and creating barrier for the public that the accident occurred.

Learned Counsel for the respondents submits that even for the sake of arguments if it is assumed that the driver of the Maruti Car contributed to the accident, it would be a case of composite negligence in which case also the deceased being a third party, the claimants were entitled to recover the amount from any vehicle. He has in this behalf referred to a Full Bench decision of this Court in Smt. Sushila Bhadoriya and Others Vs. M.P. State Road Transport Corporation and Another, holding that in such a situation both or the tort-feasors or not necessary parties and award can be passed against the both any of them. He has also placed reliance on the decision of a Division Bench of this Court in National Insurance Co. Ltd. Vs. Shri Chand Ratan and others, . In the said case where death of a passenger travelling in a Car occurred in a collision with a Truck due to negligence of both the drivers and the Tribunal apportioned the liability and directed the claimants to recover the compensation as apportioned, it was held that the claimants could proceed against both the tort-feasors or against any one and the a remedy for the tort-feasors is proceeded against is to recover the amount from the other.

In view of the finding of the Tribunal that it was a case of sheer negligence on the part of the driver of the truck and the fact that driver of the Maruti Car in which the deceased was travelling, its owner and the Insurance Company were not impleaded as it was not necessary for the claimants to do so, though the Insurance Company was granted permission u/s 170 of the Motor Vehicles Act, we are of the view that since the reasonableness of the quantum of compensation is not disputed and we are not satisfied that there was no negligence on the part of the driver of the truck in parking the said truck, we do not find any substance in this appeal of Insurance Company. We may, however, observe that since the driver, owner and the Insurance Company of the vehicle were not joined as party by the claimants and the case of the learned Counsel for the Insurance Company was that it was a case of composite negligence, we reserve liberty to the Insurance Company to proceed against the driver, owner and Insurance Company, if any, of the Maruti vehicle to prove claim of negligence against the driver of the Maruti Car and seek such reimbursement as may be decided in appropriate Forum.

With the above observation, this appeal is dismissed.