JUDGMENT:

1. Being aggrieved and dissatisfied with the judgment and order passed by the Motor Accident Claims Tribunal, Mumbai (for short “the Tribunal”), the Appellant-Insurance Company preferred this Appeal. The Claimants have also preferred Cross Objection for enhancement of compensation. As both the Appeal and Cross Objections are out of same accident, hence I am deciding it by this common judgment.

2. It is claimants case that on 19th February 2010 at about 9.00 p.m., deceased was proceeding towards Mumbai by Pune-Mumbai Express Highway in his Motor Car No.MH-04-BQ-5161. He was driving his motor car with full care and caution. When he reached near Kilometer Stone No.16 within the vicinity of Panshil Village, District- Raigad at that time, the driver of Motor Truck No.MH-22-N-591 had negligently stationed his vehicle on the road without switching on the parking and signal lights during the night time and without keeping any stones around the stationed vehicle, the driver and cleaner no where in sight, leaving the vehicle dangerously unguarded in the busiest lane, i.e. Lane No.1, on the Expressway, and at 9.00 p.m. on that day, there was so much fog due to which the deceased could not see the offending vehicle stationed in the 1st lane, as there was no indication of a truck having stopped, the deceased’s car rammed into the truck and literally the car and the deceased both got stuck below the truck. The deceased was rushed to the nearby hospital but he succumbed to his injuries on the next day while under treatment, the accident occurred solely due to the gross negligence of the driver of offending Truck.

3. It is contention of learned counsel for the Appellant-insurance company that the FIR in respect of the said accident was registered against the deceased, but the Tribunal has considered 40% contributory negligence of the deceased which is improper. It should be 100% negligence of the deceased, as deceased hit the stationary vehicle from back side. Learned counsel further submits that the Tribunal has awarded exorbitant and excessive compensation, under the head of loss of love and affection at Rs.1,00,000/, consortium @ Rs.1,00,000/-, Rs.25,000/- for funeral expenses and Rs.25,000/- for loss of estate. Hence, requested to allow the Appeal.

4. It is contention of learned counsel for the Respondent Nos.1 to 3/Claimants that accident occurred at 9.00 p.m. on express highway. The driver of offending truck had stationed the offending truck in first lane which was meant for travel of fast cars only. Moreover, no indicators or parking lights were put on when the said offending truck was parked in first lane. Accident occurred due to sheer negligence of the driver of offending truck. Had there been parking light or indicator of the said offending vehicle truck on, the accident would not have occurred. No stones were kept behind the offending truck to point out that the said truck was stationary. Deceased may not have spotted the stationary truck as there was dark and no indicators of said truck were on, he would not have expected any truck is stationed on the said first lane. Hence, he hit the said truck from behind. Though the head lights of the car were on, but it cannot be said that due to night time and fog on road, the said truck was visible or not. As per the provisions of the Motor Vehicles Act, 1988, it was the duty of driver of offending truck to put the indicators and parking light of the said truck in on condition. Inspite of that, Police registered the FIR against the deceased which is improper. In spot panchanama, it is not mentioned that the parking light and indicators of the offending truck were on. Learned counsel further submits that when accident occurred, at that time, driver and cleaner of the said offending truck were not present. The Tribunal has fixed 60% liabilities on the driver of offending truck and 40% on the deceased which is improper. Hence, requested to dismiss the Appeal and allow the Cross Objectio