Point of Law : where the place was dark and where the vehicle was parked without any sign or indication to warn other Road users, the negligence is on the driver of the parked vehicle and not the driver of any vehicle which dashes into such parked vehicle.

JUDGMENT :

1. Heard Mr. K.K. Bhatta, learned counsel appearing for the appellant/ Reliance General Insurance Co. Ltd as well as Mr. R.C. Paul and Mr. M. Dutta, learned counsel appearing for the respondents.

2. This appeal has been preferred under Section 173 of M.V. Act, 1988 filed by the appellant Reliance General Insurance Co. Ltd being aggrieved by the award of compensation dated 15.02.2018 passed by the learned Member, MACT, Golaghat in MAC Case No. 79/2014.

3. The brief facts of the case is that on 18.03.2017 at about 08.30 P.M., Rana Jagadish Hazarika the husband/son/father of the claimants (since deceased) was riding his motorcycle bearing registration no. AS-05/E-4915 towards Thuramukh through N.H. 39 and on his arrival near Indian Oil Depot, Rongajan, the motorcycle dashed against a stationary Heavy Goods Vehicle (Trailer Truck) bearing registration no. NL-01/D-9074. As a result of the accident, the rider of the motorcycle Rana Jagadish Hazarika sustained severe head injuries and died on the spot. After the accident, he was shifted to Golaghat Civil Hospital, wherein his postmortem examination was performed.

4. After the accident one case was registered vide Golaghat P.S. Case No. 238/2014, under Section 279/304(A) I.P.C. At the relevant time of the accident, the alleged offending vehicle Trailer Truck was insured with Reliance General Insurance Co. Ltd i.e. with the appellant and the motorcycle of the deceased was also duly insured with Oriental Insurance Company Limited.

5. The claimants are the heirs of the deceased Rana Jagadish Hazarika who died in the vehicular accident, approached the learned MACT, Golaghat, claiming compensation amounting to Rs. 38,07,080/-(Rupees Thirty Eight Lakhs Seven Thousand Eighty) only. After completion of trial, the Tribunal awarded compensation in favour of the claimants amounting to Rs. 29,91,772/-(Rs. Twenty Nine Lakhs Ninety One Thousand Seven Hundred Seventy Two) only. Hence, this appeal. But the undisputed facts are that the accident took place, the deceased coming with a motorcycle dashed against a stationary truck which was insured with the appellant.

6. It was urged by the learned counsel for the appellant/insurance company that the learned Member, MACT, Golaghat did not consider the evidence on record, which clearly indicated that the deceased was riding a motorcycle bearing no. AS-05E/4915, at the relevant time of the accident. He dashed against a stationary trailer truck and as such, it was apparent that he could have been avoided the accident, if he was cautious. So the accident was the outcome of the negligence of the deceased himself and the truck in no manner was responsible for the happening of the accident.

7. It is also the submission of the learned counsel for the appellant that it was highly improper to fasten the entire liability on insurer of the truck bearing no. NL-01D/9074 when there was ample evidence before the Court that the deceased had also some contribution in causing the accident. Hence, 50% be deducted from the awarded amount in respect of contribution of the deceased towards the alleged accident.

8. In support of his submission, the learned counsel for the appellant has placed reliance on some case laws:-

(i) Ramanna Vs. Rameez reported in2018 ACJ 958,

(ii) Janti Das Vs. New India Assurance Co. Ltd. and Anr. reported in 2018 Legal Eagle (Gau) 1122,

(iii) New India Assurance Co. Ltd. Vs. Harbans Kaur reported in 2012 (3) TAC 669

9. On the other hand, learned counsel for the respondent/claimant has argued that the appellant/Insurance Company though pleaded contributory negligence, but they did not lead any evidence before the Tribunal. Moreover, C.W.-2 Ganesh Baruah, eyewitness of the accident in his evidence deposed that at the time of the accident, the rider of the motorcycle drove his motorcycle in a normal speed. Hence, the contention of the insurance company that deceased had contributed to the accident cannot be accepted.

It is further submitted that omission