Both drivers exhibited contributory negligence, with equal fault attributed due to the crane's improper parking and lack of safety signals.

Oral Judgment. :

1. The issue involved in this appeal is contributory negligence of 50% fixed on the driver of crane, which was insured with appellant/insurance company.

2. It is contention of learned counsel for the Appellant/Insurance Company that the crane which was parked on the left side of express way. The said crane was dashed by the offending car from backside. The accident occurred due to sole negligence of the driver of offending car but this fact is not considered by the tribunal and has fixed 50% contributory negligence on driver of offending car and 50% contributory negligence on driver of crane, which is erroneous. He relied on National Insurance Company Limited Vs. Chamundeswari & Ors.. C.A. @ SLP (c) No.4705 OF 2019 . Hence, requested to allow the Appeal.

3. It is contention of learned counsel for the Respondents/Claimants that the crane was parked on express way. No parking lights or indicators were put on after parking it on express way. There is prohibition to park any vehicle on the express way. In spite of that crane was parked on express way without any signal and parking lights. The driver of offending car was not aware that crane was parked on the express way hence, he gave dash from backside. Learned counsel further submitted that the driver of offending crane did not step into witness box to prove the negligence of driver of offending car. Learned counsel further submitted that the tribunal has awarded consortium amount on lower side, it be awarded and requested to dismiss the Appeal.

4. Learned counsel for the Respondent No.7/Insurance Company submitted that appropriate order be passed.

5. I have heard all learned counsel. Perused judgment and order passed by the Motor Accident Claims Tribunal, Mumbai (for short “the Tribunal”).

6. It is claimant’s case that on 12th October, 2002 deceased was travelling from Mumbai to Pune along with his family members in a car bearing registration No. MTY – 8023. At about 11:30 a.m. the car dashed the broke down vehicle bearing registration No. MH- 04-B-8051 from behind, resulting into the death of Ujjwal Shroff. In the said accident, other occupants of the car sustained injuries. The crane was parked on the left side of the road, there was prohibition of parking of the vehicle on express way. The deceased was occupant of the said car. The offence was registered against the driver of offending crane. To prove the negligence of the crane driver, the claimants have examined claimant no.1 Manisha Shroff, she has stated that she was travelling with her husband Ujjwal and children in offending car. Their car dashed to the broke down vehicle from behind resulting into the death of Ujwal. The car driver was travelling car in high speed without any control. He went out of a middle lane and hit to the crane, which was parked on left side. The crane driver was negligent in parking the vehicle on express way despite large number of boards prohibiting parking on highway and accident was caused due to composite negligence of drivers of both the vehicles.

7. In cross-examination, she has admitted that width of the road was about 50 feet. The crane was parked on the left side of the tar road. The motor car was in the middle of lane. She noticed that the crane was stationary. She saw the crane from distances of 50 feet. The crane was on the extreme left side of the road. The speed of the car was 30km per hour. The Respondents have not examined any witness in support of their defense. While dealing with the issue of negligence the Tribunal has observed that the spot panchanama shows that the crane was parked on the express way. It was on tar road. The car was in high speed, the car initially gave dash to the one pole and then to the stationary crane. It was duty of the car driver to drive the car in such a speed that he could have controlled it. The driver of stationary crane also played the material role in offering the negligence. On express highway, there are number of boards to warn to