IMPORTANT POINT
The court established that contributory negligence must be proven with clear evidence, and improper parking of a vehicle can constitute negligence under the MV Act.

JUDGMENT :

Subhendu Samanta, J.

1. The instant appeal has been preferred against the judgment and award dated 20nd of March, 2021 passed by the Learned Judge Motor Accident Claims Tribunal ADJ 3rd Court Dakshin Dinajpur, in MAC Case No. 139 of 2017.

2. The Insurance Company has preferred the instant appeal against the award.

The brief fact of the case is that on 7th October 2017 at about 21:00 hours the victim of this case namely Sushanta Mallick was returning from Patiram by travelling a Maruti Car being No. WB 66Y/2625. When the Maruti was proceeding over high way, at the place of occurrence, a Track bearing No. WB 65/1998 was parked over the road without any parking light or indicator; at the last moment the driver of the Maruti Car saw the stationary track and tried to swerved his vehicle on the right side but the left side of the car strucked against the standing track thereby left front side of the Maruti Car was badly damaged and the victim who was sitting at the left front side of the Maruti Car, sustained severe injuries and succumbed to his injuries on spot.

3. The widow, two minor children and the mother of the deceased filed an application u/s 166 of MV Act before the Learned Tribunal for getting compensation. The Insurance Company contested the claim case by filing written statement. Learned Tribunal after hearing the parties and after receiving the evidence awarded a sum of Rs. 74,94,600/-as compensation and directed the Insurance Company to pay the compensation to the claimants together with 6% interest per annum from the date of the filing of the claim application.

4. Being aggrieved by and dissatisfied with the said award the Insurance Company has preferred the instant appeal.

5. Learned Advocate Mr. Rajesh Singh, appearing on behalf of the Insurance Company submits that the award passed by the Learned Tribunal is erroneous. The driver of the Maruti Car was also responsible for the accident. He further argued that there are contributory negligence of the driver of the Maruti Car but the Learned Tribunal has erroneously not considered the plea as raised by the Insurance Company through their written statement. Mr. Singh further argued that the Track was standing at the PO (at the left side of the road). The Maruti Car was driving so rashly that he could not control the speed of the vehicle and dashed the standing vehicle from behind. Mr. Singh Further argued that there are evidences to show that the driver of the Maruti Car was also responsible for the accident. He again argued that the negligence on the part of the driver of the Maruti Car may be assessed as 50%.

6. Mr. Singh cited several judgments of Hon’ble Apex Court and argued that on the similar incident the Hon’ble Apex Court had apportioned the compensation to be 50:50 between the standing vehicle and the running vehicle. The cited authorities are as follows :

(i) Rajrani and Ors. Vs. Oriental Insurance Company Limited and Ors. MANU/SC/0943/2009

(ii) Lachoo Ram And Ors. Vs. Himachal Road Transport Corporation and Ors. MANU/SC/0059/2014

(iii) Anjanaben Hasmukh Chandra Sha Vs. Bholanath Pannalal Jain. MANU/MH/1492/2005

(iv) Shail Shrivastava Vs. Harish Chauksi and Ors. MANU/MP 0948/2006

(v) Mohammed Mumtaz & Ors. Vs. S. Ravindranatha & Ors. MANU/KA/0686/2003

(vi) Reshmi Chhabra Vs. Vijay Kumar Ahuja and Ors. MANU/PH/0656/1995

7. Learned Advocate Mr. Mandal appearing on behalf of the claimants/respondents submits that the instant appeal is not entertainable. The truck was standing on the road without parking light. Mr. Mandal Submits that there is a specific provision in the MV Act regarding parking track on the High Way. Section 170, Section 122 and Section 126 of MV Act deals with the provisions. He submits that parking track on the high way in disobedience of the specific provision and itself a negligent act on behalf of the track driver. He further argued that as per rules of 109 of Central motor Vehicles Rules 1989, a proper direction has to be given during parking