NATIONAL INSURANCE CO. LTD. Vs. BABLA BAGCHI

JUDGEMENT

(1.) The National Insurance Company the insurer of the stationary truck against which the Alto car crashed into, has preferred the instant appeal against the award of compensation passed in Compensation Case No.28/2010 under Sec. 166 of the MV Act, for the death of Jayanta Bagchi in a motor vehicle accident who was the owner cum driver of the vehicle at the relevant time of accident.

(2.) The present appeal has been preferred on the ground that it was at best a case of contributory negligence but compensation of award has been made against the insurer of the truck without even impleading the insurer of Maruti Alto Car. Learned Court below has misdirected itself to rely upon the charge-sheet filed against the driver of the truck. It is pleaded on behalf of the Insurance Company that principle of res ipsa loquitor should have been applied considering the manner of accident where the Alto car rammed into a stationary truck. The impact of accident was so intense that it resulted in the death of not only the driver but also two occupants of the car. Thus, the liability should have been apportioned between the insurer of the car and the truck both and not solely on the insurer of the truck.

(3.) Learned Tribunal in this case has recorded a finding of fact that the accident took place due to wrong manner of parking of the truck without a tail light and compensation has been awarded solely against the insurer of the truck. It has been noted in the Judgment that eye witness AW 3 deposed that the truck was parked on the middle of the road without giving any indication light or anything else. Driver of the Alto car could not spot the truck and crashed into the truck. The Tribunal has referred to the Road Regulations Act 1989 which provides that every driver of a motor vehicle parking on any road shall park in such a way that it does not cause or is not likely to cause danger, obstruction or inconvenience to other road users. No contrary evidence has been led on behalf of the Insurance Company to make out a case of contributory negligence on the part of the driver of the offending vehicle. In a somewhat similar case Archit Saini v. Oriental Insurance Co. Ltd., (2018) 3 SCC 365 where the driver of the Maruti car could not spot the parked Gas Tanker due to the flashlights of the oncoming traffic from the front side and the Gas Tanker being parked in the middle of the road without any indicator or parking lights and the Maruti car could not see the parked truck due to flash light of the vehicles coming from the opposite direction, the Hon'ble Supreme Court set aside the order of the Tribunal that it was a case of contributory negligence and affirmed the order of Tribunal that negligence was on the part of the driver of the Gas Tanker on the evidence on record. Under the circumstance, I do not find any material to disturb the finding of fact recorded by the Tribunal wherein the liability of accident has solely been fixed on the truck which was parked on the road without any tail light or indicator.