IMPORTANT POINT
The court apportioned negligence in a road accident, holding the stationary truck driver 75% negligent, and enhanced compensation based on the deceased's income as a skilled driver.

JUDGMENT :

J.C. DOSHI, J.

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant-Reliance General Insurance Company Ltd. being aggrieved and dissatisfied with the judgment and award dated 30.03.2017 passed by the Motor Accident Claims Tribunal, Patan in Motor Accident Claim Petition No. 69 of 2013.

1.1. On service of summons, claimants have filed Cross Objection for enhancement of claim amount.

2. Brief facts of the case are as under:

2.1. That on 18.02.2013, deceased who is Driver was driving Truck No. GJ-12-Y-9332 and at 10.30 pm, when it reached near accidental place, one Truck No. GJ-12-X-0585 was stationery on the road and driver of the said truck had not put parking signals and as a result, truck driven by deceased dashed with stationary truck. On occurrence of incident, deceased sustained injuries and died.

3. Heard learned advocate Mr. Vibhuti Nanavati for the Reliance General Insurance Company, learned advocate Mr. Tanmay Karia for New India Insurance Company Ltd. and learned advocate Mr. Kaash Thakkar for original claimant.

4. Reliance General Insurance Company is insurer of Truck No. GJ-12-Y-9332, New India Insurance Company Ltd. is insurer of Truck No. GJ-12-X-0585 and in the present case, driver of truck No. GJ-12-Y-9332 has died.

5. Learned advocate Mr. Nanavati assailing impugned judgment and award submitted that learned Tribunal has committed serious error in attributing 60% negligence to the deceased-Ishwarbhai Rajabhai Thakore who was driver of truck No. GJ-12-Y-9332. He submits that accident took place at about 10.30 night, where, another truck No. GJ-12-X-0585 was stationary on highway of Harij-Bortadav Road, between Maheshwari Kanta and Patel Cotton Ginning, near Radhe Shyam Residency plots without switching on parking lights or any signal. He would further submit that deceased Ishwarbhai who was driving another truck could not notice stationary truck as there was no parking signal and dashed with stationary truck from behind resulting into his death. He would submit that looking to the facts of the case, deceased is not negligent in causing road accident. It is also submitted that in the present case, driver of the stationary truck did not enter into witness box. Further it is submitted that in this given circumstances, principle of res ipsa loquitur applies to the case. Panchnama being best piece of evidence did not show that driver of the stationary truck has taken due care to avoid accident viz. no signal were applied and therefore, driver of the said truck is to be held 100% negligent. Therefore, it is submitted to allow the appeal and exonerate Insurance Company from liability to pay compensation.

6. On the other hand, learned advocate Mr. Tanmay Karia supports impugned judgment and submits that in the case of Raj Rani vs. Oriental Insurance Company Ltd. (2009) 13 SCC 654, in identical situation, the Hon'ble Apex Court has held driver of truck who dashed from behind equally negligent in causing road accident. Therefore, it is submitted to dismiss the appeal.

7. Learned advocate Mr. Thakkar for the claimants submitted that deceased was not negligent in causing road accident. He supports argument made by learned advocate Mr. Nanavati as far as issue of negligence is concerned. He also quarrels with computation of just compensation. He submits that learned Tribunal failed to notice that deceased was driver of heavy vehicle. He had skilled to drive heavy vehicle and thus, taking minimum wages as income of deceased is incorrect approach on the part of the learned Tribunal. He referred to the case of Hon'ble Apex Court in Chandra @ Chanda @ Chandraram Vs. Mukesh Kumar Yadav in Civil Appeal No. 6152 of 2021 to submit that since deceased was skilled driver his income should be taken as Rs. 8,000/- per month for the purpose of loss of dependency. He also submits that learned Tribunal also failed to grant proper compensation on other heads. Therefore, it is submitted th