THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
M.A.C.M.A.No.959 of 2023
JUDGMENT:(per Hon'ble Sri Justice P.SAM KOSHY)
Heard Sri T. Ramulu, learned Counsel appearing for
the appellant.
2. The instant appeal has been filed assailing the award
passed by the Motor Accident Claims Tribunal-cum-II
Additional District Judge at Khammam in M.A.T.O.P.No.755
of 2017, dated 29.12.2022. Vide the impugned order, the
Tribunal has quantified the compensation of Rs.50, 57,340/-
stating that respondent Nos.1, 3 and 4 are jointly and
severally liable to pay the said amount to the claim petitioners. The Tribunal has also awarded an interest at the rate of 7.5% per annum from the date of filing of the claim petition till the date of realization.
3. The perusal of the record would show that the Tribunal in the course of passing the impugned award has quantified contributory negligence at 50% ratio upon the two 2 vehicles involved in the accident i.e. the Lorry belonging to the present appellant bearing Registration No.TS.06-UB-5336 and the DCM Van bearing No.AP.05-W-4635.
4. The challenge in the present appeal is to the extent of contributory negligence fastened upon the appellant-Insurance Company and the Lorry which the appellant has insured i.e. Lorry bearing Registration No.TS.06-UB-5336. Learned Counsel for the appellant submits that the evidence which has come before the Tribunal goes to show that the Driver of the Lorry, insured by the present appellant, has taken all the precautions while parking the vehicle on NH-65, in addition, the vehicle also had a radium sticker at the rear side which too has been accepted by the Driver of the DCM Van which had hit the Lorry from the rear side. Therefore, the extent of contributory negligence assessed by the Tribunal is incorrect and accordingly the award is erroneous.
5. We have considered the evidence which has come on record and the pleadings, whereby, it would be evidently clear 3 that the place of accident was NH-65 and the time of accident was at 4:30 A.M. The accident occurred on account of the Lorry insured by the appellant which was parked on the NH-
65. It goes without saying that 4:30 A.M. is normally pretty dark and the lorry seems to be have got parked on the National Highway itself. No specific reasons or material are made available and the records to justify the parking of the Lorry on the National Highway. Highways are normally not meant for parking of the vehicles and that too at odd hours and in the Highways normally, it is the tendency of the persons travelling to move pretty fast and at that moment of time, if there are unmanned stationed vehicles parked on the National Highway, there is always an element of risk of there being an accident which unfortunately in the instant case has occurred and the deceased died of the injuries sustained from the said accident. The Tribunal after due perusal of the records has reached to the conclusion that there is an element of contributory negligence on the Driver of both the vehicles involved in the accident. The Insurance Company of the 4 opposite vehicle i.e. DCM Van has been exonerated by the Tribunal fastening the liability upon the owner of the said vehicle and upon the present appellant. According to the learned counsel for the appellant, there is no challenge by the owner of the DCM Van so far as the liability fastened upon them and there is also no appeal filed by the claimants questioning the exoneration of respondent No.2 Insurance Company as far as the liability of 50% contributory negligence fastened upon the present appeal is concerned.
6. In the given factual backdrop, more particularly, the place of accident and the time of accident and the Lorry which was insured by the appellant being parked on the Highway and which was in stationery position, 50% of contributory negligence fastened by the Tribunal cannot be said to be unreasonable or bad in law. Therefore, we do not find any strong case made out by the appellant calling for an interference with the impugned award. The appeal of the appellant-insurance Company thus fails and is accordingly rejected. Nonetheless, it is required to clarify at this juncture 5 that the appellant, who is the Insurance Company of the Lorry, would be held liable to indemnify the owner of the Lorry to the extent of 50% of the compensation awarded in terms of the contributory negligence affixed by the Tribunal. No order as to costs.
7. As a sequel, miscellaneous applications pending if any in this appeal, shall stand closed.
_________________ P.SAM KOSHY, J ________________________________ LAXMI NARAYANA ALISHETTY, J 05.09.2023 myk 6 THE HON'BLE SRI JUSTICE P.SAM KOSHY AND THE HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY M.A.C.M.A.No.959 of 2023 (per the Hon'ble Sri Justice P.SAM KOSHY) 05.09.2023 MYK