Allowed

Nita Narendra Nadgouda v. M/S Garuda Carrieres and Shipping (P) Ltd. and Ors.

Bombay HC30 Nov 2023FA/693/2011

Case brief

AI extract

What is this about?

In an appeal under civil appellate jurisdiction, the High Court held that 100% liability rested on the driver of a stationary truck lacking parking lights under Rule 109 of the Central Motor Vehicle Rules, 1989, setting aside the Tribunal's finding of contributory negligence and enhancing compensation.

What did the court decide?

Appeal allowed; Compensation enhanced to Rs. 8,34,944 with 7% per annum interest.

Nita Narendra Nadgouda Vs M/S Garuda Carrieres and… — Medical Negligence | Bombay HC (2023)

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39-FA-693-2011.doc

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S.S.Kilaje

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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FIRST APPEAL NO. 693 OF 2011

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Nita Narendra Nadgouda

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Age – 45 years, Occ – Housewife,
R/at 28/157, Pradhikaran, Nigidi, Pune

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….Appellant

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 Versus

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1. M/s. Garuda Carriers and Shipping (P) Ltd. Branch Office – Mahesh Kunj Gandhi Baug,

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Nagpur.

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 Head Office – No. 18, 3rd Floor, Narang
 Chambers, N.R.Road, Banglore

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2. The New India Assurance Co. Ltd. Having its office at 1^st Floor, Gopal Krishna Bhavan, Rani Jhansi Square, Sitaduldi, Nagpur-440012

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3. The New India Assuance Co. Ltd. Regional Office – Behind Padale Palace, Nal Stop, Near Karve Road, Erandwane, Pune …..^Respondents

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Mr. Yogesh Pande, Advocate for the Appellant.
Mr. Devendranath S. Joshi , Advocate for Respondent No.2.

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 CORAM : SHIVKUMAR DIGE, J.
 DATE : 30th NOVEMBER, 2023.

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JUDGMENT :

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1. By this Appeal, appellant is seeking enhancement of

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compensation.

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2. The brief facts of the case are as under :

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39-FA-693-2011.doc

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S.S.Kilaje

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3.On 17.12.2003 at around 9.15 p.m. the deceased was proceeding
on his Bajaj Kawasaki Caliber motorcycle bearing No. MH-14-Z-2825
towards chakan in moderate speed. When his motorcycle reached near
village Sudwadi in front of Kalbhor Vasti on Talegaon Chakan road, at that
time, one truck/trailer bearing No. KA-01A-1981 was stationed on the
road without parking lights on. The driver of the offending truck did not
take care to put any sign or signal of the stationed truck. The deceased
could not see the said truck due to dark night and gave a dash to it from
behind and sustained multiple injuries. He succumbed to injuries. The
Claim Petition was filed for getting compensation by claimant/Appellant
before the Motor Accident Claim Tribunal, Pune (for short “the Tribunal”).
The Tribunal has fixed contributory negligence of 65% on deceased and
35% on driver of stationed truck.

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4.It is contention of learned counsel for appellant that the
trailer/truck was stationed on road without putting parking lights on. It
was dark night, the deceased could not see the said stationed truck and
gave dash to it from behind. There was sole negligence of the driver of the
trailer but this fact was not considered by the Tribunal. Hence requested
to allow the appeal. He relied on Judgment of Mohini Mohanrao Salunke

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Vs. Ramdas Hanumant Jadhav1.

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1 2022 Livelaw (Bom) 428

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39-FA-693-2011.doc

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S.S.Kilaje

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5.It is contention of learned counsel for the respondent – Insurance
Company that offence was registered against the deceased for causing the
said accident. It shows that there was no negligence of the driver of the
truck/trailer and there was negligence of deceased himself. The Tribunal
has considered this fact, and on that basis, Judgment and Award is passed
which is proper and no interference is required in it.

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6.I have heard both the learned Counsel. Perused the Judgment
and Order passed by the Tribunal. Admittedly truck / trailer was stationed
on road and accident occurred around 9:30 p.m. It is significant to note
that the driver of the truck / trailer has not examined himself or any
witness to prove that he had taken proper care to avoid the accident. The
parking lights of the said truck were not on. It was the duty of the driver
of the offending truck to put on the parking lights when the truck was
stationed on the road. As per Rule 109 of the Central Motor Vehicle Rules,

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1989 proper precautions are necessary to be taken. It reads thus:

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“109. Parking light.—[Every construction equipment
vehicle, combine harvester and motor vehicle] and every
motor vehicle other than motor cycles and three wheeled
invalid carriages shall be provided with one white or
amber parking light on each side in the front. In addition
to the front lights, two red parking lights one on each side
in the rear shall be provided. The front and rear parking
lights shall remain lit even when the vehicle is kept
stationary on the road.

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Provided also that construction equipment
vehicles [and combined harvesters], which are installed
with food light lamps or sport lights at the front, rear or
side of the vehicle for their off-highway or construction

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39-FA-693-2011.doc

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S.S.Kilaje

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operations, shall have separate control for such lamps or
lights and these shall be permanently switched off when
the vehicle is travelling on the road.]”

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7. This Court in the case of Mohini Mohanrao Salunke (supra) has
held that it is duty of the driver of stationed truck to take proper
precautions, when truck is stationed on the road. But it appears that in
present cast it was not taken. But this fact has not been considered by the
Tribunal and has wrongly fixed 65% liability on deceased which is
erroneous. Hence, I am setting it aside and I am holding that there was
100% negligence of the driver of the truck.

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8.The Tribunal has observed that appellant is entitled for total
amount of Rs.11,93,760/- out of this amount 65% amount is reduced as a
contributing negligence of deceased. As I held that there was no
contributory negligence of deceased, hence appellant is entitled for
amount of Rs.11,93,760/-. The Tribunal has not awarded consortium
amount, as per the view of the Hon’ble Apex Court in the case of Magma
General Insurance Co Ltd versus Nanu Ram2. The claimant is entitled for
Rs.44,000/- as consortium amount, Rs.16,500/- for loss of estate and
Rs.16,500/- for loss of funeral expenses. The total amount comes to
Rs.12,70,760/-.

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9. The Tribunal has awarded Rs.4,35,816/-. If this amount is deducted from amount of Rs.12,70,760/-, it comes to Rs.8,34,944/-. The 2 2018 ACJ 2782 (SC)

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39-FA-693-2011.doc

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S.S.Kilaje

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claimants are entitled for this amount.

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10.Learned counsel for the appellant on instruction submits that
appellant/claimant will not claim future prospectus by filing any petition
as this Court has fixed 100% liability on the driver of truck. His statement
is accepted.

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11.In view of the above, I pass following order:

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(i) The Appeal is allowed.

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(ii) Appellant is entitled for the amount of

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Rs.8,34,944/- @ 7% interest per annum from
the date of filing of the claim petition till
realisation of the amount.

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(iii)Respondent-Insurance Company shall deposit

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the enhanced amount along with interest within
four weeks after receipt of the order. Appellant
is entitled to withdraw the amount after

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depositing by Respondent-Insurance Company.

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12. The Appeal is disposed of.

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 (SHIVKUMAR DIGE, J.)

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Digitally signed SONALI by SONALISATISH KILAJE SATISH Date:2023.12.08 KILAJE 11:03:27+0530

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Nita Narendra Nadgouda v. M/S Garuda Carrieres and Shipping (P) Ltd. and Ors.

Case brief

What is this about?

What did the court decide?

Nita Narendra Nadgouda v. M/S Garuda Carrieres and Shipping (P) Ltd. and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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