The main legal point established in the judgment is the determination of negligence and contributory negligence in a motor vehicle accident, and the liability of the Insurance Company under the Motor Vehicles Act.

JUDGMENT

Biswanath Rath, J. - Maca No.789 of 2020 is an Appeal at the instance of Insurance Company involving judgment dated 18.03.2020 in MAC 142 of 2012 (4 of 2011-GDC), whereas MACA No. 784 of 2020 is at the instance of claimants again involving same judgment dated 18.03.2020 in MAC 142 of 2012 (4 of 2011-GDC) but for enhancement of compensation. For common facts and issues involved herein, this Court on consent of Claimants and Insurance Company takes up the hearing of the matters and dispose of both the Appeals by this common judgment.

2. Short background involving the case is that on 20.10.2010 at about 11.00 P.M., while deceased Surendra Muni was travelling in a Car bearing Registration No.MH-O3-J8631 from Mumbai to Berhampur, Odisha along with two others on NH-5 near village of Patrunivalasa under Nandigam P.S. jurisdiction in the district of Srikakulam (A.P.), met with an accident with the Truck bearing Registered No.AP-31TU-5149, as a result of which, the driver and one of the occupant of the Car died at the spot and the deceased along with the other occupant sustained severe injuries. Soon after the accident, the injured deceased and other injured were shifted to RMS Hospital, Srikakulam and it is claimed that while both were undergoing treatment, the deceased succumbed to injuries on 21.10.2010. It is alleged that the offending Truck was parked on the middle of the road without any indication of parking light, for which, the driver of the Car could not visualize the parking of the offending vehicle in the night and accident took place due to negligence act of the driver of the offending Truck. A police case was registered u/ss.304(A)/338 of I.P.C. involving the accident, vide Nandigam P.S. Case No.98 of 2010, corresponding to Crime Case No.110 of 2011 in the court of learned J.M.F.C., Palasa (A.P.). Claimants claimed that the deceased was about 49 years at the time of accident and he was working as an Electrician in Dockyard, Mumbai and was getting monthly salary of Rs.23,271/-. It is also claimed that the deceased was the only earning member of the family. For the untimely death of the deceased, the claimants lost their only bread earner and led a miserable life. On the premises that the offending Truck was insured with the Insurance Company-O.P.2 therein and the claimants are the legal heirs of the deceased by the application involved claimed Rs.25,00,000/- (Rupees Twenty five lakhs) only as compensation from the Owner as well as the insurer of the vehicle.

3. Upon receiving notice, Owner-opposite party no.1 did not appear and prefer to remain absent, for which, the Owner was set ex parte on 26.9.2012.

4. Insurance Company-opposite party no.2 therein appeared through their counsel and filed the Written Statement denying the allegation against the Insurance Company. Insurance Company even disputed the alleged accident and death due to accident involving the offending vehicle. It is rather claimed that the offending truck was in stationary position and was parked on the left side of the road. It is rather claimed that for the negligent driving of the vehicle carrying the deceased and other passengers, the death has taken place. Insurance Company thus claimed that they are not liable for such negligence.

5. Basing on the pleadings, learned Tribunal framed the following issues:

"(i) Whether deceased Surendra Muni met with a road accident on 20.10.20101 at about 11 P.M. on NH-5 near village Patrunivalasa under Nandigam PS jurisdiction in the district of Srikakulam (A.P.) and the said accident was caused due to careless & negligent act of the driver of the Truck bearing Regd. No.AP31TU-5149 ?

(ii) Whether the petitioners are entitled to get compensation ? If so, from whom and to what extent ?

(iii) Whether the petitioners are entitled to any other relief(s) ?"

6. Claimants to establish their respective case, examined two witnesses including one occupant of the vehicle. The claimants also exhibited a number of documents marked