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Judgment
Feeling aggrieved by and dissatisfied with the judgment and award dated 02.08.2005 passed by Motor Accident Claims Tribunal (Main.), Surendranagar, (hereinafter referred to as "the Tribunal" for short) in Motor Accident Claim Petition No.742/1996, the appellant Insurance Company has preferred this Appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for short).
Present appeal was heard along with First Appeal No.1398/2003, which also arises from the same accident, however, the Tribunal was different and the same is being disposed of as dismissed by the judgment of even date.
Following noteworthy facts emerge from the record of the appeal:
3.1 That on 11.05.1996 at about 11:00 a.m, the original claimantBharvi@ Bhargav Dinkarray Thakar was travelling in Jeep bearing registration No.GAN9600 belonging to Wadhwan Nagarpalika, which was being driven by driver Madansang and when the said jeep reached near Meldi Mata Temple at Morbi - Vankaner highway, one truck bearing registration No.MH04P3135 was lying stationary on the middle of the road in clear breach and in violation of the traffic rules without any signal, indicator or parking lights and because of the same, the Jeep dashed with the said stationary truck from behind, due to which, the driver of the Jeep died on the spot and the original claimant sustained serious injuries.
3.2 In the said accident, the claimant got permanent partial disability due to serious injuries sustained in the said accident. Therefore, the claimant preferred a claim petition under Section 166 of the Act before the Tribunal and claimed compensation of Rs.3,50,000/ along with interest at the rate of 9 %.
3.3 It was the case of the claimant that the claimant was 27 years old and earning Rs.2,500/ p.m by doing videography and photography. It was further the case of the claimant that because of the injuries sustained in the accident, original claimant was not able to work satisfactorily and had to undergo extensive treatment and had to incur huge medical expenses.
3.4 The claimant examined himself at Exh:47 and also relied upon the FIR at Exh:37 and Panchnama at Exh:38. Upon appreciation of the evidence on record, the Tribunal came to the conclusion that the driver of both the vehicles were negligent and was pleased to hold that the driver of truck was negligent to the tune of 75 %, whereas the driver of jeep was negligent to the extent of 25 %. The Tribunal considering the income of the original claimant at Rs.2,000/ p.m and considering the other evidence on record as regards the medical expenses, disability certificate issued by Dr. Vasavada at Exh:48, considered 25 % permanent disability of the body as a whole and applying multiplier of 15, awarded Rs.1,35,000/ as compensation under the head of future loss of income, Rs.10,000/ towards actual loss of income, Rs.10,000/ towards pain, shock and suffering, Rs.25,000/ towards medical expenses and Rs.6,000/ towards food, transport and attendant charges. Thus, the Tribunal awarded total compensation of Rs.1,86,000/ along with 9% interest from the date of filing claim petition till its realization.
Heard Mr.Vibhuti Nanavati, learned counsel for the appellant - United India Insurance Company Ltd., Mr. Hemant Shah, learned counsel for respondent No.5 - New India Assurance Company and Mr. M.P.Prajapati, learned counsel for respondent No.1 - original claimant.
Mr. Vibhuti Nanavati, learned counsel for the appellant has contended that the Tribunal has committed an error in considering the aspect of negligence. Referring to the panchnama of scene of accident at Exh:38, it was contended that the Tribunal has committed an error in coming to the conclusion that the driver of truck was negligent to the extent of 75 % and on this ground, it was contended that the Tribunal has wrongly decided the extent of negligence, which should be modified. According to Mr. Nanavati, negligence ought to have been equal, because the manner in which the accident has occurred, driver of jeep was also equally negligent as driver of jeep had dashed a jeep with the Truck from behind without there being any fault of driver of the Truck.
On the abovementioned contentions, Mr.Nanavati submitted that the present appeal be allowed, as prayed for and the impugned judgment and award deserves to be modified accordingly.
Mr. M.P.Prajapati, learned counsel for respondent No.1original claimant has supported the impugned judgment and award and submitted that the Tribunal has committed no error in assessing the income of the claimant and therefore, the appeal being meritless, deserves to be dismissed.
Mr.Hemant Shah, learned counsel for respondent No.5 Insurance Company has also supported the impugned judgment and award and submitted that the Tribunal has committed no error and hence, the present appeal be dismissed.
No other and further submissions have been made by learned counsel for the parties.
The evidence on record, more particularly the panchnama at Exh:38 clearly shows that the Truck was parked without any indicator or parking lights, that too at night hours at 11:00 p.m. The Tribunal in para 15 of the impugned judgment and award has vividly considered the evidence on record and has narrated the manner in which the accident has occurred. Even considering the deposition of the original claimant, it is evident that the Truck was parked on a highway in negligent manner without there being any indicator or parking lights that too at night hours and therefore, the Tribunal has rightly come to the conclusion that the driver of truck was more negligent than the driver of the jeep.
The Apex Court in the case of Archit Saini & Anr. Vs. Oriental Insurance Company Limited & Ors. [(2018) s SCC 365], while considering the similar accident, has held that when a vehicle like truck is parked on the middle of National Highway without any indicator or parking lights in negligent manner and due to flashlights of oncoming traffic fro the front side, driver of small vehicle (in that case Maruti car) was held not to be negligent at all.
Considering the evidence on record as well as the judgment of the Apex Court in the case of Archit Saini & Anr. (supra), in the case on hand the Tribunal has committed no error in coming to the conclusion that the driver of truck is more negligent than the driver of Jeep. Therefore, present appeal deserves to be dismissed and is hereby dismissed. The impugned judgment and award dated 02.08.2005 passed by Motor Accident Claims Tribunal (Main.), Surendranagar, in Motor Accident Claim Petition No.742/1996 is hereby confirmed. However, there shall be no order as to the cost in this Appeal.
Registry is directed to send back original record and proceedings to the concerned Tribunal forthwith.