Partly allowed

Sri.Basappa @ Basavaraj S/O Venkappa Pujari v. Shri.Venkappa Hanamappa Mullur

Karnataka HC4 Apr 2019MFA/102889/2015

Case brief

AI extract

What is this about?

A nighttime collision with a parked truck led to death and injury claims. The court fixed negligence at 80% on the truck driver and 20% on the motorcyclist, permitted full recovery by the pillion rider, and revised fatal compensation. The fatal claimants' appeal was partly allowed; the other appeals were dismissed. Future interest was reduced to 7%.

What did the court decide?

Pillion rider permitted full recovery from truck owner and insurer; dependants awarded 80% of reassessed fatal compensation; insurer directed to satisfy awards. Future interest fixed at 7% per annum.

Sri.Basappa @ Basavaraj S/O Venkappa Pujari Vs… — Motor Accident Claims | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 04^TH DAY OF APRIL 2019

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PRESENT

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THE HON’BLE MR. JUSTICE G. NARENDAR

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AND

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THE HON’BLE MR. JUSTICE BELLUNKE A.S.

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MFA No. 102889/2015 C/W MFA Nos.102890/2015, 102639/2015 AND 102640/2015 (MV)

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IN MFA NO: 102889/2015:

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BETWEEN:

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SRI.BASAPPA @ BASAVARAJ S/O VENKAPPA PUJARI AGE:40 YEARS, OCC:AGRICULTURE, (NOW NIL) R/O:CHITRABANKOTE, TQ:MUDHOL, DIST:BAGALKOT. NOW R/O:HOUSE NO.17, PLOT NO.1741, LAXMI NAGAR, 2ND CROSS, KAKATI, DIST: BELGAVI.

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... APPELLANT

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(By Sri. SHARAD V. MAGADUM, ADV.)

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AND :

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SHRI.VENKAPPA HANAMAPPA MULLUR AGE:62 YEARS, OCC:BUSINESS, R/O:H.NO.14J W.NO.5, VENKATESHWAR NAGAR, LOKAPUR TQ:MUDHOL, DIST:BELAGAVI.

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THE MANAGER SHRIRAM GENERAL INSURANCE CO. LTD., E-8 EPIP, RIICO INDUSTRIAL AREA,

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SITAPURA JAIPUR, RAJASTAN-302022

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... RESPONDENTS

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(By Sri. SRINIVAS B. NAIK, ADV. FOR R1 AND SRI SURESH S. GUNDI, ADV. FOR R2.)

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THIS MFA IS FILED U/S 173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 20.04.2015, PASSED IN MVC NO.2225/2013 ON THE FILE OF THE XI ADDITIONAL DISTRICT JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 102890/2015

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BETWEEN:

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SMT.NILAWWA @ MALLAWWA W/O ASHOK KARIGAR AGE:37 YEARS, OCC:HOUSE WIFE, R/O: CHITRABANKOTE TQ:MUDHOL, DIST:BAGALKOT. NOW R/O: HOUSE NO.17, PLOT NO.1741 LAXMI NAGAR, 2ND CROSS, KAKATI DIST:BELAGAVI.

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KUMAR NAMDEV S/O ASHOK KARIGAR AGE:18 YEARS, OCC:STUDENT,

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KUMAR MANJU S/O ASHOK KARIGAR AGE:14 YEARS, OCC:STUDENT,

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KUMARI PREMA D/O ASHOK KARIGAR AGE:11 YEARS OCC:STUDENT

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APPELLANTS NO.3 AND 4 BEING MINORS REP BY NEXT FRIEND MOTHER APPELLANT NO.1

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... APPELLANTS

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(By Sri SHARAD V, MAGADUM, ADV.)

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AND :

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SHRI.VENKAPPA HANAMAPPA MULLUR AGE:62 YEARS, OCC:BUSINESS, R/O:H.NO.14J W.NO.5 VENKATESHWAR NAGAR, LOKAPUR TQ:MUDHOL, DIST:BELAGAVI.

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THE MANAGER SHRIRAM GENERAL INSURANCE CO. LTD., E-8 EPIP, RIICO INDUSTRIAL AREA, SITAPURA JAIPUR, RAJASTAN-302022

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... RESPONDENTS

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(By Sri. SRINIVAS B. NAIK, ADV. FOR R1 AND Sri.SURESH S.GUNDI, ADV.FOR R-2.)

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THIS MFA IS FILED U/S 173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 20.04.2015, PASSED IN MVC NO.2224/2013 ON THE FILE OF THE XI ADDITIONAL DISTRICT JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO: 102639/2015

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BETWEEN :

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THE MANAGER SHRIRAM GENERAL INSURANCE CO.LTD., E-8, EPIP RIICO INDUSTRIAL AREA, SITAPUR, JAIPUR, RAJASTHAN-302 022

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... APPELLANT

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(By Sri. GUNDI SURESHA SHARANAPPA, ADV.)

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AND:

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NILAWWA @ MALLAWWA W/O. ASHOK KARIGAR, AGE : 37 YEARS, OCC:HOUSEHOLD WORK, R/O : CHITRABANKOTE, TQ : MUDHOL, DIST : BAGALKOT.

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KUMAR NAMDEV S/O ASHOK KARIGAR AGE: 18 YEARS, OCC: STUDENT, R/O : CHITRABANKOTE, TQ : MUDHOL, DIST : BAGALKOT.

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KUMAR MANJU S/O ASHOK KARIGAR, AGE: 14 YEARS, OCC: STUDENT, R/O : CHITRABANKOTE, TQ : MUDHOL, DIST : BAGALKOT.

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KUMAR PREMA D/O ASHOK KARIGAR, AGE: 9 YEARS, OCC: STUDENT, R/O : CHITRABANKOTE, TQ : MUDHOL, DIST : BAGALKOT. (RESPONDENT 3 & 4 BEING MINORS REPRESENTED BY NEXT FRIEND MOTHER-RESPONDENT NO.1)

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SHRI. VENKAPPA HANAMAPPA MULLUR AGE : 60 YEARS, OCC: BUSINESS, R/O : H.NO.14 J, W.NO.5, VENKATESHWAR NAGAR, A/P LOKAPUR, TQ : MUDHOL, DIST : BAGALKOT.

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... RESPONDENTS

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(By Sri. SHARAD V. MAGADUM, ADVS. FOR R1-R4 Sri. SHRINIVAS B. NAIK ADV. FOR R5.)

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THIS MFA IS FILED U/S 173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 20.04.2015, PASSED IN MVC NO.2224/2013 ON THE FILE OF THE XI ADDITIONAL DISTRICT JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, AWARDING THE COMPENSATION OF RS.3,27,000/- WITH INTEREST AT THE RATE OF 9% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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IN MFA NO: 102640/2015:

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BETWEEN:

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THE MANAGER, SHRIRAM GENERAL INSURANCE CO.LTD., E-8,EPIP RIICO INDUSTRIAL AREA, SITAPUR, JAIPUR, RAJASTHAN-302 022.

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... APPELLANT

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(By Sri. SURESHA S. GUNDI, ADV.)

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AND:

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SHRI. BASAPPA @ BASAVARAJ S/O VENKAPPA PUJARI, AGE: 40 YEARS, OCC:AGRICULTURE (NOW NIL), R/O : CHITRABANKOTE, TQ: MUDHOL, DIST : BAGLAKOT. (NOW RESIDING AT HOUSE NO.17, PLOT NO.174, LAXMI NAGAR, 2^ND CROSS, KAKATI, DIST: BELAGAVI).

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SHRI. VENKAPPA HANAMAPPA MULLUR AGE: 60 YEARS, OCC : BUSINESS, R/O : H.NO.14 J, W NO.5, VENKATESHWAR NAGAR, A/P LOKAPUR, TQ : MUDHOL, DIST : BAGALKOT.

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... RESPONDENTS

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(By Sri. SHARAD V. MAGADUM, ADV. FOR R1 Sri. SRINIVAS NAIK ADV. FOR R2.)

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THIS MFA IS FILED U/S 173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 20.04.2015, PASSED IN MVC NO.2225/2013 ON THE FILE OF THE XI ADDITIONAL DISTRICT JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, AWARDING THE COMPENSATION OF RS.95,000/- WITH INTEREST AT THE RATE OF 9% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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THESE APPEALS ARE COMING ON FOR ADMISSION , THIS DAY, BELLUNKE A.S. J., DELIVERED THE FOLLOWING:

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JUDGMENT

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MFA No.102639/2015, 102640/2015 are preferred by the Insurer being aggrieved by the judgment and award fastening the liability on the insurance company and quantum of compensation awarded in MVC.No.2224/2013 and 2225/2013 respectively. The appeals in MFA No.102889/2015 and MFA No.1012890/2015 have been filed by the claimants seeking enhancement of the compensation awarded in MVC Nos.2224/2013 and 2225/2013 respectively. The claim petitions are considered by a common judgment and award dated 20.04.2015 passed by XI Additional District Judge and Additional Motor Accident Claims Tribunal- at Belagavi (herein after referred to as the ‘Tribunal’ for the sake of brevity). The parties are referred to as per their ranks before the Tribunal.

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Brief facts of the case are that, on 06.03.2013 one Mr.Ashok along with his friend Basappa, were proceeding from Gadankeri cross towards Kaladagi village on a motorbike bearing Reg.No.KA-48/K-8715 on Bagalkot-Lokapur main road. The said Ashok was riding the motorbike while Basappa was the pillion rider. When said motorbike was proceeding near Ramaruda math, at about 8.15 p.m. the driver of truck and trailer bearing Reg.No.KA-48/3299 and KA-48/3300 had parked his vehicle negligently in the middle of the road without switching on any indicator or parking lights nor placing stones around the vehicle so as to give an indication to drivers of other vehicles about the presence of the offending vehicle. Thus, Ashok rode the motorbike unaware of the parked truck on account of darkness. Thus, the motorbike dashed against the truck and trailer, thereby accident took place. The rider Ashok

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succumbed to injuries on spot. Pillion rider Basappa also sustained severe injuries. Post mortem was conducted on the dead body of Ashok at PHC, Kaladagi. Petitioners have spent more than Rs.50,000/- towards transportation of dead body and also for funeral expenses. It was contended that, prior to the accident, the deceased was aged about 37 years and he was agriculturist by profession. Deceased was getting yearly income of Rs.5.00 lakhs from his agricultural establishment. The deceased was the only earning member in his family. Because of his untimely death the petitioners lost their complete dependency. It was contended that the accident in question occurred due to rash and negligent act of the driver of the truck and trailer, since he had parked the vehicle in the middle of the road without putting any indicators, parking lights and stones around the vehicle. It was also contended that respondent

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No.1 is the owner while respondent No.2 is the insurer of the said truck and trailer. Therefore, they are liable to pay compensation to make good the loss suffered by the claimants. Hence, the claimants sought for compensation for the untimely death of the deceased in MVC No.2224/2013.

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The petitioner in MVC No.2225/2013 had contended that the accident occurred due to rash and negligent act of the driver of the lorry in question. The lorry was parked middle of the road without any indicator or parked lights. Therefore, on account of accident, the petitioner had suffered grievous injuries. It was contended that, soon after the accident petitioner was shifted to M/s. M.S. Kerudi Hospital, Bagalkot where he took treatment as indoor patient by spending more than Rs.2,00,000/-. It was contended that prior to accident, the petitioner was hale and healthy and was aged about 40

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years. Petitioner was agriculturist by profession and was getting annual income of Rs.3.00/lakhs. Due to accidental injuries, petitioner has become permanently physically disabled, therefore, he is not in a position to continue his avocation as agriculturist and he has suffered not only physically, but also financially. It was contended that accident took place due to negligent act of the driver of the truck, therefore, respondent No.1, the owner of the truck is liable to pay the compensation. Therefore, the petitioner has prayed to allow his claim petition.

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After service of notice, respondent No.1 appeared before the Tribunal and has filed objections, denying the petition averments of the claim petitions are false and baseless. It is denied that the accident occurred due to the rash and negligent act of the driver of truck and trailer bearing Reg.No.KA-48/3299 and KA-

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48/3300. It is denied that petitioner-Basappa became permanent physical disabled due to accidental injuries. It is contended that accident in question occurred solely due to the rash and negligent riding of motorcycle by the deceased. Claim petitions are bad for nonjoinder of necessary parties, since owner as well as insurer of the motorbike are not made as a party to the claim petitions. It is contended that as on the date of the accident, the driver of the truck and trailer was having valid and effective driving license. Further, it is contended that as on the date of accident said truck and trailer was insured with respondent No.2. Therefore, respondent No.2 alone is liable to pay the compensation. Hence, respondent No.1 prayed to dismiss the petitions filed by the claimants.

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Respondent No.2 appeared and filed its objections. It is contended that all material averments of petitions are false and baseless.

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The age, occupation and income of the deceased as well as petitioner-Basappa, as averred in the claim petitions are false and baseless. Claim amount as claimed by the petitioners is more and excessive, without any base. It is denied that accident occurred due to rash and negligent act or the driver of truck and trailer bearing Reg.No.KA-48/3299 and KA-48/3300. It is denied that said truck and trailer was parked on the middle of the road as averred in the petitions. Accident occurred due to rash and negligent riding of motorbike by deceased Ashok, in which case, respondent No.2 insurance company is not liable for payment of compensation amount.

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It is denied that petitioner Basappa has suffered permanent disability. It is contended that accident took place due to rash and negligent riding of motorcycle by the deceased himself in which case, respondent No.2

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insurance company is not liable for payment of compensation amount. It is further contended that said motorbike was not duly insured with any of the insurance company; hence petitioners have not approached the Tribunal with clean hands. Owner and insurer of motorbike are not impleaded in the claim petitions. Therefore, claim petitions are bad for non-joinder of necessary parties.

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It is contended that as on the date of accident truck and trailer was duly insured with respondent No.2, but liability of respondent No.2 is subject to terms and conditions of insurance policy and also valid and effective driving license of driver of the truck and trailer. Driver of truck was not holding valid and effective driving license. Thus, respondent No.1 has violated the terms and conditions of insurance policy. It is also contended that as on the date of accident said truck had no valid permit and fitness

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certificate, hence respondent No.2 not liable for payment of compensation amount. Therefore, on these grounds respondent No.2 insurance company also prayed for rejection of claim petitions.

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On the basis of above pleadings, the trial Court framed the following issues for its consideration.

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ISSUES IN MVC No.2224/2013

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Whether the petitioners prove that one Ashok Nagappa Karigar died in the road traffic accident occurred on 06.03.2013 at about 8.15 p.m. on Bagalkot-Lokapur SH-20 road near Ramaruda math, Gaddankeri cross, Bagalkot, due to rash and negligent act of the driver of Truck and Trailer bearing reg.No.KA-48/3299 and KA 48/3300 as alleged in the petition ?

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Whether the respondent No.2 proves that petition is bad for non joinder of necessary parties ?

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Whether the respondent No.2 proves that accident has taken place entirely due to rash and negligent riding of motor cycle by the deceased ?

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Whether the petitioners are entitled for compensation if so, from whom and at what amount ?

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What order or award ?

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ADDITIONAL ISSUES

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Whether respondent No.1 proves that accident in question occurred due to rash and negligent driving of the motorcycle by the deceased, and owner and insurer of said motor cycle are not impleaded as necessary parties to this petition and petition is bad for non joinder of necessary parties?

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ISSUES IN MVC No.2225/2013

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Whether the petitioner proves that he has sustained bodily injuries in the road traffic accident occurred on 6.3.2013 at about 8-15 p.m. On BagalkotLokapur SH-20 road near Ramaruda Math, Gaddankeri cross, Bagalkot, due to rash and negligent act of the driver of Truck and Trailer bearing reg.No.KA-48/3299 and KA 48/3300 as alleged in the petition?

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Whether the respondent No.2 proves that petition is bad for non joinder of necessary parties ?

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Whether the respondent No.2 proves that accident has taken place entirely due to rash and negligent riding of motor cycle by the deceased ?

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Whether the petitioners are entitled for compensation if so, from whom and at what amount ?

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5. What order or award ?

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ADDITIONAL ISSUES

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Whether respondent No.1 proves that accident in question occurred due to rash and negligent driving of the motorcycle by the deceased, and owner and insurer of said motor cycle are not impleaded as necessary parties to this petition and petition is bad for non joinder of necessary parties?

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The tribunal has answered the issues in

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both the cases as under :

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Issue Nos.1, 3 and 4 : Partly in the affirmative Issue No.2 : In the negative. Additional issue No.1 : In the negative. Issue No.5 : As per final order.

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After holding the trial, the Tribunal

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allowed the claim petitions.

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10. The Tribunal awarded the

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compensation in both the cases on the following heads.

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IN MVC No.2224/2013

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1	Loss of dependency	15,00,000/-
2	Loss ofconsortium	50,000/-
3	Loss of love and affection	50,000/-
4	Funeral expenses	30,000/-
5	Loss ofestate	5,000/-
	TOTAL	16,35,000/-

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IN MVC No.2225/2013

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1	Loss of future income	2,88,000/-
2	Pain and sufferings	50,000/-
3	Loss of comfort & amenities	25,000/-
4	Medicalexpenses	1,10,000/-
	TOTAL	4,73,000/-

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The tribunal held that the deceased Ashok, the motorcycle rider and as well as truck driver were responsible for rash and negligent.

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Having regard to the evidence on record, the Tribunal held that the deceased motorbike rider had contributed to the tune of 80% and truck driver was contributed negligence to the extent of 20%. Being aggrieved by the finding of the tribunal the legal representative of the deceased filed the appeal in MFA No.102889/2015 and injured claimant preferred an appeal in MFA No.102890/2015 on the following grounds.

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IN MFA No.102889/2015 (MVC No.2225/13)

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The award passed by the Tribunal is contrary to the principles of natural justice and is against the provisions of law as the

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compensation is to be adequate as the act is beneficiary one and hence the impugned order requires to be modified.

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The Tribunal erred in fastening the liability on the insurance company of truck and trailer only to the extent of 20% and to the extent of

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80% on the deceased who was rider of the motorbike which is contrary to the evidence on record and is illegal and liable to be interfered with.

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The award of Rs.25,000/- under the head of loss of comfort and amenities is on the lower side and same is requires to be enhanced.

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The Tribunal erred in taking income of the appellant only to an extent of 96,000/- p.a. is on the lower side and hence deserves to be enhanced.

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The Tribunal ought to have awarded compensation under the head of laid up period as the injuries sustained by the appellants are grievous in nature as the appellant has sustained 10 injuries as stated in Ex.P14 and 21 and hence, the award passed by the Tribunal requires to be enhanced.

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The Tribunal ought to have fastened the entire liability on the insurance company as the driver of the truck and trailer parked the same on the road without their being any signal to that effect in order to give signal to the other vehicles regarding such parking on the road and hence, the impugned judgment and award is liable to be modified.

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Looking from any angle the impugned judgment and award requires to be enhanced.

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IN MFA No.102890/2015 (MVC No.2224/13)

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The award passed by the Tribunal is contrary to the principles of natural justice and is against to the provisions of law as the compensation is to be adequate as the act is beneficiary one and hence, the impugned order requires to be modified.

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The Tribunal erred in fastening the liability on the insurance company only to the extent of 20% and 80% on the deceased, which is contrary to the evidence on record and is illegal and liable to be interfered with.

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The compensation awarded under the head of loss of estate is on the lower side, the same requires to be enhanced.

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The Tribunal erred in deducting 1/3^rd of income of the deceased Ashok without having recourse the Sarala Varma case, as per which, if the dependants are more than 3, 1/4^th has to be deducted. Hence, it requires modification.

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The Tribunal ought to have considered the fact that the appellants Nos.2 to 4 have lost their father at the early age and they will be deprived of love and affection of their father at such a

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young age and hence requires to be enhanced.

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The Tribunal ought to have fastened the entire liability on the insurance company as the driver of the Truck parked the vehicle on the road without their being any signal to that effect in order to give signal to the other vehicles regarding such parking on the road and hence, the impugned judgment and award is liable to modified.

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On the above said grounds, the legal heirs of the deceased and injured claimant have prayed to allow their appeals filed by them by enhancing the compensation awarded by the Tribunal and fixing the whole liability on the Insurance Company.

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On the other hand, being aggrieved by

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the award of compensation, the Insurance Companies have preferred the appeals in MFA

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Nos.102639/2015 and 102640/2015 respectively on following grounds. :

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IN MFA No.102639/2015:

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The award passed by the Tribunal is perverse and neither tenable under law nor on facts. The tribunal erroneously and without application of judicial mind, has passed the impugned judgment and award.

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The Tribunal has not appreciated the oral and documentary evidence placed before it in right perspective and the appreciation by it are contrary to the facts of the case.

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The Tribunal has failed to draw proper presumptions and inferences. The Tribunal has committed an error in concluding that 5 acres of land belong to deceased Ashok Karigar.

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The annual income assessed by the Tribunal is excessive.

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The Tribunal has awarded interest @ 9% p.a. is on the higher side, it has to be reduced at 6% p.a.

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The Tribunal without proper presumptions and inferences has passed the impugned judgment and award relying solely on the pleadings of the petitioner which is not proved and the tribunal has fastened liability on the appellant – Insurance Company.

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The Tribunal has awarded the compensation on the higher side.

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20% negligence attributed to the truck driver is on the higher side.

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IN MFA No.102640/2015:

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The award passed by the Tribunal is perverse and neither tenable under law nor on facts. The tribunal erroneously and without application of judicial mind, has passed the impugned judgment and award.

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The Tribunal has not appreciated the oral and documentary evidence placed before it in right perspective and the appreciation by it are contrary to the facts of the case.

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The Tribunal has failed to draw proper presumptions and inferences. The Tribunal has committed an error in considering the evidence of PW3 the doctor who has not treated the petitioner and who has not deposed on the permanent physical disability to the whole body and who has deposed that the disability is 45% over right lower limb and concluded that the disability is 20% to the whole body. Thought if the normal proposal is considered 1/3^rd percent of 45% that would be 15% and not 20%.

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The annual income assessed by the Tribunal is excessive without any proof.

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The Tribunal has awarded interest @ 9% p.a. is on the higher side, it has to be reduced at 6% p.a.

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The Tribunal without proper presumptions and inferences has passed the impugned judgment and award relying solely on the pleadings of the petitioner which is not proved and the tribunal has fastened liability on the appellant – Insurance Company.

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The Tribunal has awarded the compensation on the higher side.

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20% negligence attributed to the truck driver is on the higher side.

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On the above said grounds, the Insurance Company prayed to allow their appeals and prayed to dismiss the appeals filed by the legal heirs of the deceased and injured claimant.

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Heard the arguments of the counsel for

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the parties at length.

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consideration are :

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Whether the appellants-claimants prove that in MFA Nos.10288990/2015, the accident in question was on account of rash and negligent act of the driver of truck to the extent of 100%?

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Whether the appellants-claimants prove that the compensation awarded by the Tribunal is liable to be enhanced? If yes, what is quantum of compensation to which the respective appellants are entitled?

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Whether the appellant-Insurance Company in MFA No.102639/2015 proves that the compensation to the claimants is excessive ?

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Whether the appellant-Insurance company in MFA No.102640/2015 proves that the compensation to the claimants is excessive?

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5. What order?

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Points are answered as under:

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Point No.1: Partly in the affirmative Point No.2: Partly in the affirmative Point No.3: Partly in the affirmative Point No.4: In the negative. Point No.5: As per final order.

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In a case of this nature, whether there was any rash and negligent act on the part of the deceased resulting in an accident and what is the contribution of negligence have to be decided. Having reference to Section 122 of the Act, 1988, the said Section deals with :

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“Section 122 of the Motor Vehicles Act, 1988 deals with leaving vehicles in dangerous position. It states that no

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person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers. The owner of the vehicle has the right to drive the vehicle on the road and also the right to park the vehicle, but the parking of the vehicle cannot cause any danger or obstruction to other passers-by or passengers. This is a restriction on the road to park the vehicle. The aforesaid restriction on the road to park a vehicle is a reasonable restriction and emanates from a duty to take care.”

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In Kumari Jyothi & Others vs.

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Mohd. Usman Ali & Others, reported in [ILR 2002 KAR 893] (Kumari Jyothi), a Coordinate Bench of this Court found that the lorry in the said case was parked in the middle

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of NH9 with a full load of sugarcane with no signs or indicators with regard to parking of the lorry on the road; that, normally, when any vehicle had to be parked on account of break down, atleast some stones would be kept around the vehicle to give some signal or warning to others. In the said case, that was not done and that there were also well grown trees and it was difficult to see the parked lorry. Referring to Section 122 of the Act, the Division Bench held that the driver of the parked lorry was alone to be blamed as he had parked the lorry in the middle of the road without any sign or indications for the other road users.

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Reference could also be made to the judgment of the Gujarat High Court in Premlata Nilamchand Sharma vs. Hirabhai Ranchhodbhai Patel, [1983 ACJ 290] and the judgment of the Delhi High Court in Pushpa Rani Chopra vs. Anokha Singh, [1975 ACJ

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396], wherein it has been held that where the place was dark and the vehicle was parked without any sign or indication to warn other road users, negligence is on the driver of the parked vehicle and not the driver of any vehicle which dashes into such parked vehicle.

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Similarly, in the case of New India Assurance Co. Ltd. vs. Asha Prasad & others, reported in [2011 ACJ 2641], another Coordinate Bench of this Court has held that the driver of the truck had parked the vehicle without giving any indication such as parking light as signal and the accident occurred around 1.30 a.m. At that time, the place was completely dark as there was no street light. Further, from the perusal of the recitals of the mahazar or panchnama therein, it was clear that the deceased had tried his best to avoid the accident by applying brakes which was supported by the tyre marks found on the road to the extent of 50

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ft. and inspite of it, he could not avoid the collision and as a result he rammed his car against the truck. In the said case, the Tribunal, on the basis of the fact that there were brake marks on the road, had apportioned negligence to an extent of 25% on the driver of the car and 75% on the driver of the offending vehicle (truck), which was affirmed by this Court, but in the aforesaid judgment, there is no reference to the earlier judgment of the Division Bench of this Court in the case of Kumari Jyothi.

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In the context of a highway, persons traveling on a highway could proceed at a faster pace than in a city or town unless there is a traffic restriction or other obstruction to slow down. Hence, any vehicle, which is parked on the highway without any sign or indication with regard to its parking, must take care regarding the parking of the vehicle so that it does not

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cause any obstruction to the other passengers on the highway. In the case of Nirmal Bhutani & others vs. Haryana State & another, [AIR 1983 Punjab and Haryana 188: 1983 ACJ 640], where a road roller was parked on the road without any sign or indication with regard to its standing there and the place was particularly dark, it was held that the road roller standing on the road in such a manner was a grave and unexpected hazard for road users and it constituted a breach of duty of care which was owed by the driver of the road roller to other road users. It was held that the accident was caused due to negligence of the driver of the road roller in leaving it parked unmarked on the main highway. It was further held that where a motor vehicle is left parked on a highway in such a manner that it constitutes a hazard or danger to the road users, the onus must be held to be upon one who seeks to avoid

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liability arising from the accident with such vehicle, to establish that despite such parking of the motor vehicle, the accident took place due to a fault or negligence of the other party or such other party could have avoided the accident by reasonable care and caution.

¶204

Further, in the case of Shashikala Swain & others vs. Md. Khairuddin & another, [AIR 2000 Orissa 52: 2001 ACJ 1638], reference has been made to Section 122 of the Act and the duty cast on the driver of a stationary vehicle on a public place so as not to cause any danger, obstruction or undue inconvenience to the users of public place and also to the other passengers.

¶205

Further, under Section 126 of the Act, no person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place, unless there is in

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the driver’s seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other measures taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver. Section 127 has been amended with effect from 14/11/1994, wherein it states that where any motor vehicle is abandoned or left unattended, on a public place for ten hours or more or is parked in a place where parking is legally prohibited, its removal by a towing service or its immobilization by any means including wheel clamping may be authorised by a police officer in uniform having jurisdiction. Sub-section (2) of Section 127 states that where an abandoned, unattended, wrecked, burnt or partially dismantled vehicle is creating a traffic hazard, because of its position in relation to the public place, or its physical appearance is causing impediment to the traffic,

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its immediate removal from the public place by a towing service may be authorised by a police officer having jurisdiction. Sub-section (3) of Section 127 states that where a vehicle is authorised to be removed under sub-section (1) or sub-section (2) by a police officer, the owner of the vehicle shall be responsible for all towing costs, besides any other penalty. Section 127 of the Act is an enabling provision which empowers a police officer to tow away an abandoned, unattended, wrecked, burnt or partially dismantled vehicle, which is creating a traffic hazard at the expense of the owner, but that does not imply absence of duty on the part of the owner and driver of the vehicle, which is left unattended in a public place. A duty is cast on the driver as well as the owner of such a vehicle to ensure that such a vehicle is towed away as immediately as practicable and not left abandoned or unattended, particularly on a

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highway where vehicles are permitted to move at a faster pace than on other roads. In the alternative, some other form of external lighting ought to have been provided so as to give an indication about the parked lorry, until a vehicle, which is stationed/parked due to a break down or if it has met with an accident is towed away, it is necessary that the said vehicle does not become dangerous to other vehicles. For that precautions, under Section 122 read with the relevant Rules have to be followed by the driver and owner of the stationed vehicle, particularly on a highway.

¶212

The display of lights of motor vehicles is generally regulated by statute. Under Rule 109 of Central Motor Vehicles Rules, 1989, every motor vehicle, other than motor cycles and three-wheeled invalid carriages shall be provided with one white or amber coloured parking light on each side in the front. In addition to the

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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. The proviso states that rear lamps can be the same as the rear lamps referred to in sub-rule (2) of Rule 105. Sub-rule (2) of Rule 105 states that every motor vehicle, other than three-wheeler, shall also carry two lamps (hereinafter referred to as the rear lamp) showing to the rear a red light visible in the rear from a distance of one hundred and fifty-five metres; lamp, which may be the rear lamp or some other device, illuminating with a white light the whole of the registration mark exhibited on the rear of the vehicle, including a construction equipment vehicle, so as to render it legible from a distance of fifteen metres to the rear. Sub-rule (5) of Rule 105 states that in the case of a transport vehicle, the rear light may be fixed at such level

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as may be necessary to illuminate the registration mark. In sub-rule (6) of Rule 105, it is stated that every heavy goods carriage, including trailers, shall be fitted with a red indicator lamp of size of thirty centimeters by ten centimeters on the extreme rear-most body cross-beam and in case of a vehicle not constructed with body in the rear, the indicator lamp shall be fitted near the right, rear light above the rear number plate. Under Rule 107, it is stated that every goods vehicle, including trailer and semi-trailer, other than threewheelers and vehicles with overall width not exceeding 2.1 metres, shall be fitted with two white lights at the top right and left corners showing white light to the front and two red lights at the top right and showing red light to the rear. The lights shall remain lit when the vehicle is kept stationary on the road during night and at the time of poor visibility. Provided

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that in the case of goods carriage without a full body in the rear, provision for fitting of the top light at the rear shall not be necessary.

¶219

In this case, the accident is occurred at about 8.15p.m. in the night. Admittedly, the motorcycle will be also having head lights, which can sufficient light and visibility would not show low unless there was other vehicles coming from the opposite direction with dazzling lights. Therefore, the amount of care should have been exercised by motorcycle rider thereby the impact of the accident could have been reduced not only saving his own life, but also causing injury to the pillion rider. Therefore, having regard to the entire evidence available on record and also the facts and circumstances of the case, we find that the truck driver was rash or negligent to the tune of 80%. Contributory negligent can be assessed on the part of the motorcycle rider to the tune of 20%. Therefore, we reverse the

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finding of the Tribunal, which has fixed at 80% contributory negligence on the motorcycle and 20% on the lorry driver.

¶222

The challenge by the Insurance company is that even fastening of 20% liability is also erroneous is not at all proved, nor it is tenable contention having regard to the evidence. No rebuttal evidence led by the truck driver. Therefore, we find that the ratio of contributory negligence is fixed to the tune of 20:80.

¶223

As regards liability is concerned, the pillion rider is entitled for a compensation from both the joint tort-feasor or from any one of the part of joint feasor. So far as the injured claimant is concerned, respondent Nos.1 and 2 jointly and severally satisfy the award passed in favour of the insurer. As regards legal representatives of the deceased motorbike rider is concern, they are entitled to recover 80% of

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compensation from respondent Nos.1 and 2 and they have to bear the 20% loss. After deciding the point in dispute, we proceed to examine whether the compensation awarded by the Tribunal is just and proper in both the cases the legal representatives of the deceased as well as injured.

¶226

On perusal of the evidence on record, we find that the Tribunal held that the deceased was earning income of Rs.1,50,000/- per annum and not more than that. No doubt, the petitioners have contended that the deceased was earning Rs.9.00/- lakhs per annum by cultivating commercial lands. But, the income of the crops cannot be base for assessment of the income of the deceased person. It is also admitted that the crops are being raises by the legal representatives. Therefore, for supervisory charges they have to spend in the absence of bread winner. That is the basis for assessing

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the compensation. Therefore, taking into consideration the date of accident and the notional figure i.e., adopted in Lok Adalath for settlement of the cases, we assess the income of the deceased at Rs.8,000/- per month. The deceased has left beyond four legal representatives, the wife and three minor children. Therefore, 1/4^th of the income of the deceased should be deducted towards personal expenses of the deceased. Actual income of the deceased would be Rs.6,000/- per month. Since the deceased had no fixed income nor a self employed person. Therefore, future prospects cannot be awarded. The deceased was aged about 40 years. The multiplier applicable will be ‘15’. The total loss of dependency on account of the death of the deceased would be:

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Rs.6,000X12X15 = Rs.10,80,000.

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The Tribunal has awarded Rs.50,000/towards consortium to the petitioner No.1. The well settled principles of law, under the head of conventional heads, the compensation can be awarded in the ratio of Rs.40,000/- towards consortium to petitioner No.1. Then loss of love and affection to the minor children at Rs.40,000/-each. Funeral expenses and loss of estate at together have to be awarded at Rs.15,000/- each. Therefore, the appellantsclaimants in MVC No.2225/2013 are entitled for compensation as under :

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IN MVC No.2225/2013

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1	Loss of dependency	10,80,000/-
2	Loss ofconsortium	40,000/-
3	Loss of love and affection to the minor children P1 to 3.	1,20,000/-
4	Funeralexpenses	15,000/-
5	Loss of estate	15,000/-
	TOTAL	12,70,000/-

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Accordingly, the appellants-claimants are entitled for compensation of Rs.12,70,000/as stated above. Since, 20% liability is fixed on the deceased. Therefore, a sum of Rs.2,54,000/has to be deducted out of total compensation. The appellants-claimants are entitled to a total compensation to a sum of Rs.10,16,000/-

¶236

Respondent Nos.1 and 2 jointly and severally are liable to pay the award amount. Respondent No.2 has to satisfy the award.

¶237

As regards injured person is concerned, the Tribunal based on the evidence on record has assessed the income of the injured at Rs.96,000/- per annum. Based on the ground that he was agriculturist and was growing crops in the land etc., Therefore, there is no error committed by the Tribunal assessing

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the income of the injured at Rs.96,000/- per annum.

¶240

However, the Doctor has opined that the injured has suffered permanent disability to the extent of 45% to the right lower limb and disability assessed to the extent of 20% to the whole body. The injured has suffered the following injuries as per Ex.P14 and 21.

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Lacerated wound measuring 4X2 cm over nose.

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Tenderness over cheek.

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Swelling, tenderness, deformity of right thigh

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Tenderness, swelling over right side of leg.

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Tenderness, swelling over patella

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Comminuted supercondylar femur fracture right

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Right tibial spine fracture

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Right medial tibial condye fracture

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Comminuted patella fracture right

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Comminuted displaced fracture of nasal bones right zygomatic arch,

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lateral wall of right orbit, frontal skull bone.

¶253

Having regard to the nature of above said injuries, we find that the 20% as a whole body disability can be taken. The age of the injured is 40 years as on the date of accident. Therefore, the Tribunal rightly applied the multiplier of ‘15’.

¶254

Having regard to the compensation awarded by the Tribunal, we find no reasons to enhance the compensation. Accordingly, we quantify Rs.4,73,000/- awarded by the Tribunal is affirmed.

¶255

Hence, for the aforesaid reason, we find that the appeal in MFA Nos.102889/2015 is hereby dismissed and the appeal in MFA No.102890/2015 filed by the legal representative of the deceased is allowed in part . Consequently, MFA Nos.102639/2015 and

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102640/2015 filed by the Insurance Company are hereby dismissed.

¶258

Injured in MFA No.102889/2015 is entitled to recover the entire award amount from respondents No.1 and 2 jointly and severally and respondent No.2 is liable to satisfy the award. The claimants MFA No.102890/2015 are entitled to recover 80% of the compensation award from the from the respondent Nos.1 and 2. Respondent No.2 is liable to be satisfy the award.

¶259