First Appeal dismissed. Court upheld Tribunal's 50% contributory negligence on crane driver parked on expressway without lights. Enhanced consortium, estate, and funeral expenses payable to claimants, reduced by 50%.
Appellant/Insurance Company directed to deposit enhanced amount of Rs.1,38,000/- with 7.5% interest.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
241-FA-120-2011.doc
Shantanu Dhudum
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
FIRST APPEAL NO. 120 OF 2011
Digitally signed by SHANTANU SHANTANU SHANKARSA SHANKARSA DHUDUM DHUDUM Date: 2024.03.28 15:36:59 +0530
United India Insurance Co. Ltd. )
A. Govt. Company having, its Pune )
Regional Office at Bharati Vidyapeeth )
Bhavan, Shastri Marg, Navi Peth, )
Pune- 411 030 ) ….Appellant
(Orig. Opp. No.4)
Versus
1. Manisha Ujjwal Shroff.)
2. Tanvi Ujjwal Shroff.)
3. Yash Ujjawal Shroff.)
4. Navneetlal Purshottam Shroff.)
5. Hemlata Purshottam Shroff)
Respondent Nos.2 and 3 being)
Minors through Respondent No.1)
Their mother natural guardian)
All residing at 375/1, Amar Villa,)
9th Road, Chembur, Mumbai.)
6. Gunwant G. Shroff) F.A. dismissed as
Residing at 19/5, Kavita Kunj) per Reg. J-II order
3rd Road, TPS IV, Off Turner Road) dated 01.10.2014
Bandra (W), Mumbai 400 050.) against Res. No.6
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Shantanu Dhudum
7. The New India Assurance Co. Ltd.)
Having its Pune Regional Office)
At Sharada Centre, Second Floor)
Off. Karve Road, Pune 411 004)
And head Office at New India )
Assurance Bldg. M. G. Road,)
Fort Mumbai 400 001.)
8. Kothari Towing Services) F.A. dismissed as
Shop No.3, Opp. Moham Mill) per Reg. J-II order
Compound, G. B. Road,) dated 01.10.2014
Thane 400 062.) against Res. No.8.
….Respondents
Mr. K. N. Kandekar, Advocate for the Appellant.
Ms. Tejas S. kapre i/b Mr. Jayprakash S. Kapre, Advocate for the
Respondent Nos.1 to 5.
Mr. S. M. Dange, Advocate for the Respondent No.7.
CORAM : SHIVKUMAR DIGE, J.
DATE : 14th MARCH, 2024.
Oral Judgment. :
1. The issue involved in this appeal is contributory negligence
of 50% fixed on the driver of crane, which was insured with2/10
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Shantanu Dhudum
appellant/insurance company.
2. It is contention of learned counsel for the
Appellant/Insurance Company that the crane which was parked on
the left side of express way. The said crane was dashed by the
offending car from backside. The accident occurred due to sole
negligence of the driver of offending car but this fact is not
considered by the tribunal and has fixed 50% contributory
negligence on driver of offending car and 50% contributory
negligence on driver of crane, which is erroneous. He relied on
National Insurance Company Limited Vs. Chamundeswari & Ors..
C.A. @ SLP (c) No.4705 OF 2019. Hence, requested to allow the
Appeal.
3. It is contention of learned counsel for the
Respondents/Claimants that the crane was parked on express way.
No parking lights or indicators were put on after parking it on
express way. There is prohibition to park any vehicle on the express
way. In spite of that crane was parked on express way without any
signal and parking lights. The driver of offending car was not aware
that crane was parked on the express way hence, he gave dash from
backside. Learned counsel further submitted that the driver of
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offending crane did not step into witness box to prove the negligence
of driver of offending car. Learned counsel further submitted that the
tribunal has awarded consortium amount on lower side, it be
awarded and requested to dismiss the Appeal.
4.Learned counsel for the Respondent No.7/Insurance
Company submitted that appropriate order be passed.
5. I have heard all learned counsel. Perused judgment and
order passed by the Motor Accident Claims Tribunal, Mumbai (for
short “the Tribunal”).
6. It is claimant’s case that on 12th October, 2002 deceased
was travelling from Mumbai to Pune along with his family members
in a car bearing registration No. MTY – 8023. At about 11:30 a.m.
the car dashed the broke down vehicle bearing registration No. MH-
04-B-8051 from behind, resulting into the death of Ujjwal Shroff. In
the said accident, other occupants of the car sustained injuries. The
crane was parked on the left side of the road, there was prohibition
of parking of the vehicle on express way. The deceased was occupant
of the said car. The offence was registered against the driver of
offending crane. To prove the negligence of the crane driver, the
claimants have examined claimant no.1 Manisha Shroff, she has
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stated that she was travelling with her husband Ujjwal and children
in offending car. Their car dashed to the broke down vehicle from
behind resulting into the death of Ujwal. The car driver was
travelling car in high speed without any control. He went out of a
middle lane and hit to the crane, which was parked on left side. The
crane driver was negligent in parking the vehicle on express way
despite large number of boards prohibiting parking on highway and
accident was caused due to composite negligence of drivers of both
the vehicles.
7.In cross-examination, she has admitted that width of the
road was about 50 feet. The crane was parked on the left side of the
tar road. The motor car was in the middle of lane. She noticed that
the crane was stationary. She saw the crane from distances of 50
feet. The crane was on the extreme left side of the road. The speed
of the car was 30km per hour. The Respondents have not examined
any witness in support of their defense. While dealing with the issue
of negligence the Tribunal has observed that the spot panchanama
shows that the crane was parked on the express way. It was on tar
road. The car was in high speed, the car initially gave dash to the
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one pole and then to the stationary crane. It was duty of the car
driver to drive the car in such a speed that he could have controlled
it. The driver of stationary crane also played the material role in
offering the negligence. On express highway, there are number of
boards to warn to not park the vehicle on the road. The crane driver
was negligent in parking the vehicle in an uncared condition. There
was no indication of parking of the said crane for incoming vehicles
and users of the road. There was no reflects on the crane. There was
no parking lights, stones, bushes or branches around the crane to
show that vehicle was parked.
8.Considering the evidence on record, the Tribunal has fixed
50% contributory negligence on crane driver and 50% contributory
negligence on offending car, I do not find infirmity in it.
9. Admittedly, the crane was parked on express highway.
Though, it was parked on left side of the road, it was parked without
any signal, no parking lights or indicators were put on. In my view,
when any vehicle is stationed on the road as per the provisions of
Central Vehicles Rules, it is obligation on the driver of said vehicle to
put on parking lights or indicators of said crane.
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Shantanu Dhudum
“ Section 15 in the Rules of the Road Regulations, 1989:
15. Parking of the vehicle:-
(1) Every driver of a motor vehicle parking on any road shall
park in such a way that it does not cause or is not likely to cause
danger, obstruction or undue inconvenience to other road users
and the manner of parking is indicated by any sign board or
markings on the road side, he shall park his vehicle in such
manner.
(2) A driver of a motor vehicle shall not park his vehicle:
(i) at or near a road crossing, a bend, top of a hill or a
humpbacked bridge;
(ii) on a foot-path;
(iii) near a traffic light or pedestrian crossing;
(iv) in a main road or one carrying fast traffic;
(v) opposite another parked vehicle or as obstruction to other
vehicle;
(vi) alongside another parked vehicle;
(vii) on roads or at places or roads where there is a continuous
white line with or without a broken line;
(viii) near a bus stop, school or hospital entrance or blocking a
traffic sign or entrance to a premises or a fire hydrant;
(ix) on the wrong side of the road;
(x) where parking is prohibited;
(xi) away from the edge of the footpath.”
“Regulation 28 of the Motor Vehicles (Driving) Regulation:
Vehicle breakdown:
In case a vehicle with more than two wheels has broken down
at a place where it can be recognised in time as a stationary
obstacle,-
(i). the hazard warning lights of the vehicle shall be switched on
immediately;
(ii). on highways and major roads with fast speed, reflective
traffic warning triangles shall be placed at a distance of fifty
meters behind the broken-down vehicle; and In present case, it
shows that the driver of the said Truck has clearly violated all
the rules and regulations of the Central Motor Vehicle Rules,
Motor Vehicle Rules and the Rules of the Road and Regulation,
1989, and Regulations made under the Act.”
“When any vehicle is stationed on the road at night time, as per
Rule 109 of the Central Motor Vehicles Rules, 1989, proper
precautions are necessary to be taken. It reads thus:-
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Shantanu Dhudum
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:
Provided that these rear lamps can be the same as the rear
lamps referred to in rule 105 sub-rule (2): [Provided also that
construction equipment vehicles [and combined harvesters],
which are installed with food light lamps or sports lights at the
front, rear or side of the vehicle for their off highway or
construction operations, shall have separate control for such
lamps or lights and these shall be permanently switched of
when the vehicle is travelling on the road.]”
These rules states that front and rear parking lights shall
remain lit, when the vehicle is kept stationary on the road. In the
present case, the crane was stationed on the road but, no parking
lights and indicator were on. As per the Central Vehicle Rules,
reflective traffic warning triangles shall be placed at a distance of
fifty meters behind the broken-down vehicle. In the present case, no
such triangles were kept, it shows that the driver of said truck has
clearly violated the rules and regulations of the Central Vehicles
Rules. Moreover, the driver of the crane did not step into witness
box, to prove that, he had taken proper precautions when crane was
parked on express highway, which was prohibited to be parked. I do
not see merit in the contention that 50% contributory negligence
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Shantanu Dhudum
fixed on the crane driver by the Tribunal is erroneous.
10.The tribunal has awarded consortium amount on lower
side. As per view of Hon’ble apex Court in the case of Magma
General Insurance Company vs. Nanu Ram (2018 SCC 1546), each
claimant is entitled to Rs.48,000/- for consortium amount and
Rs.18,000/- for loss of estate and Rs.18,000/- for funeral expenses.
There are five claimants, total of it comes to Rs.2,76,000/-. The
claimants are entitled for this amount. The 50% of it comes to
Rs.1,38,000/-, the claimants are entitled for this amount.
11.I have gone through the case laws cited by the learned
counsel for the appellant, the facts of cited case and present care are
different hence, not applicable to this case.
12.In view of above, I pass following order.
ORDER
i. Appeal is dismissed.
ii. The claimants are permitted to withdraw the
deposited amount along with accrued interest
thereon.
iii. The claimants are entitled for enhanced amount of
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Shantanu Dhudum
Rs.1,38,000/- @ 7.5% interest from 1st November,
2017 till realisation of the amount.
iv The appellant/insurance company shall deposit
enhanced amount along with accrued interest
thereon, within six weeks after receipt of the order.
v. The claimants are permitted to withdraw the deposited amount along with accrued interest thereon.vi. The statutory amount be transmitted to the tribunal along with accrued interest thereon. The parties are at liberty to withdraw it, as per Rule.vii. The Claimant shall pay deficit Court fees on enhanced amount.13. All pending applications, if any, stand disposed of.
(SHIVKUMAR DIGE, J.)
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2 issues framed by the court
Whether the Tribunal was correct in fixing 50% contributory negligence on the crane driver?
Whether the consortium amount awarded by the Tribunal required enhancement?
Colour shows how this judgement treated each authority
National Insurance Company Limited Vs. Chamundeswari & Ors.Distinguished¶78
National Insurance Company Limited Vs. Chamundeswari & Ors.. C.A. @ SLP (c) No.4705 OF 2019
Magma General Insurance Company vs. Nanu RamRelied on¶75
Magma General Insurance Company vs. Nanu Ram (2018 SCC 1546) · Who else cites this
2 provisions across 2 enactments
United India Insurance Co. Ltd.
Manisha Ujjwal Shroff
Tanvi Ujjwal Shroff
Yash Ujjawal Shroff
Navneetlal Purshottam Shroff
Hemlata Purshottam Shroff
Shivkumar Dige
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court