NEW INDIA ASSURANCE CO LTD Vs. HARBANS KAUR

JUDGEMENT

(1.) The twin appeals arise out of the same accident. The accident resulted in death of a passenger in a car that struck with the parked truck. The deceased was a businessman engaged in import and export and domiciled in USA. The claimants were wife, minor son and the parents. The contention in the petition was that the truck had been parked on the main road without adequate parking lights and the accident took place when the driver of the car was attempting to overtake yet another vehicle and finding that it was not possible on account of another vehicle coming from the opposite direction blinding the sight of the driver by its headlights, the driver attempted to draw the car towards left when he dashed against the parked truck. In the claim petition, the owner of both the vehicle as well as the respective insurers had been made as parties. The owner of the car had filed written statement contending that the truck was responsible for the accident but he denied his stand at the evidence when he said that it was his own driver, who was responsible for the accident. Learned counsel appearing for the insurer for the car namely the New India Assurance Company Ltd. would, therefore, contend that the owner had given a modified version only to make the insurer liable for a larger sum and therefore, the statement already filed by him ought to have been the only basis for fixing the liability. The Oriental Insurance Company, which was the insurer for the truck contended that the truck was after all parked in one side and the evidence revealed that the accident took place only on account of the negligence of the driver of the car trying to swerve the vehicle to the left extreme portion of the road but still dashed against the stationary truck only on account of his negligent driving. Mr. Talwar, learned counsel for the Oriental Insurance Company, would, therfore, contend that the negligence was wholly of the car and no part of negligence could be attributed to the truck.

(2.) Before the Tribunal, on the evidence led by the respective parties, it was held that the apportionment of liability between the car owner and the truck ought to be in the ratio of 60:40. This apportionment of liability is the principal ground of challenge for the insurance companies.

(3.) In a case where there is an inter se dispute between the respondents, it shall not be sufficient to merely take the version of the claimant. An ultimate decision could be given only on sifting the divergent versions given by the parties. If there was a parked vehicle and still there had been a collision, it is normally be taken only that the vehicle, which dashed against the parked vehicle, was responsible for the accident. The aggravating circumstance could be when the parked vehicle had been parked inappropriately at the middle of the road or without adequate parking lights. The mitigating circumstance, on the other hand, would be when the vehicle had been parked to the left side but still a collision had taken place by virtue of the fact that there were no adequate sign that the vehicle had been parked on the side. In any event, a greater share of responsibility must be taken by a person, who dashed against the parked vehicle unless the place of parking was at the middle of the road. Learned counsel appearing for the Oriental Insurance Company Ltd. would also contend that even the criminal case had been lodged only against the driver of the car and the truck driver had not been proceeded against. It could be easily imagined that no negligence could be attributed to driver, who had parked the truck on the left side of the road but when we are considering the issue of negligence, we are considering it not merely from the point of negligence of driving of the drivers but also of any other factor that could have caused the accident. In this case, the contention was that the truck had been parked without adequate signs or parking lights and therefore, the car driver could not avoid hitting the truck at the last minute in his attempt to save himself from hitting the oncoming vehicle. On the rival contentions of the parties, the Tribunal has apportioned the liability as 60:40. I affirm the same and dismiss the appeals of the Insurance Companies.