National Insurance Company ... vs Kudupuganti Rama
2023 Latest Caselaw 2033 Tel

           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

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

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

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

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

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