Judgment:
M.P. Chinnappa, J.
1. Being aggrieved by the Judgment and Award dated 29.10.96 passed by the Motor Accidents Claims Tribunal and District Judge, Dharwad, in MVC. No. 312/83 dismissing the claim petition, the appellants have preferred this appeal.
2. The brief facts leading to this appeal are:- the deceased Dhanikumar was working as the driver of the vehicle bearing No. TNC 4795 owned by one Loganathan - respondent No. 1. On 29.1.1983 the said Dhanikumar had taken the lorry from Davangare to Ranebennur and after unloading certain goods it was re-loaded with cattle feed in the said truck. He left Ranebennur at about 7-15 pm and he was driving his vehicle towards Davanagere, when he reached Makanur cross, the vehicle dashed against a stationary truck bearing No. MHF 1336 owned by the 3rd respondent, M.H. Rajpal and insured with the 5th respondent herein. As a result of this impact, the driver Dhanikumar succumbed to the injuries. Therefore, the legal representatives of the deceased Dhanikumar lodged a claim under Section 110-A of the Motor Vehicles Act.
3. The 2nd respondent with whom the lorry No. TMC 4795 was insured and the 5th respondent with whom the lorry No. MHF 1336 was insured resisted the claim petition on various grounds. However, the owners of these two lorries have not filed any written statement.
4. The learned Tribunal framed as many as 6 issues and held that the appellants proved that Dhanikumar had died in a truck accident on 29.1.1983 on P.B. Road near Makanur cross. However, they failed to establish that the accident was due to the negligent act of the truck bearing No. MHF 1336 and they are not entitled for any compensation as claimed by them, for the reasons stated in the Judgment. The Tribunal also held that the petition is not bad for non-joinder of necessary parties and the insurance coverage is not given. This finding of the teamed Tribunal has been assailed by the appellants.
5. Heard the learned Counsel for the appellants and the learned Counsel for the respondents.
6. The learned Counsel for the appellant at the very outset submitted that the driver of the lorry bearing No. MHF 1336 had parked the lorry by the side of the road without putting on the parking lights and also the stones surrounding the lorry indicating the parking of the lorry by the side of the road. This is an act of negligence on the part of the driver of the said lorry as he had not taken necessary precaution. Due to darkness the deceased Dhaniraj Jain could not sight this lorry and as a result the accident occurred. Therefore, he submitted that the finding of the Tribunal that the appellants have failed to prove the actionable negligence on the part of the other lorry is incorrect. He also submitted, in the alternative, if the total negligence cannot be attributed to this lorry driver, at least it has to be held that the parking of the lorry without proper precautions contributed to the negligence to a certain extent & can safely be fixed at 50%.
7. Per contra, the learned counsel for the respondents submitted that there is no evidence to show that the accident occurred because of the parking of the lorry. The finding of the Tribunal dearly indicates that there was sufficient space available on the road and that the lorry was parked on the 'kucha' road leaving sufficient space for the other lorries to move on. In those circumstances, no negligence can be attributed to the driver of this lorry.
8. The 1st appellant was examined as P.W.1. Admittedly she was not in the lorry and she was not aware as to how the accident had occurred. P.W.2 is the person who claims to be in the lorry on that particularly day and he is a witness to the occurrence. However, the learned Tribunal has not accepted his evidence solely on the ground that he was not working in the lorry, nor he has any reason to travel in that lorry on that particular day and he has not come out with the truth. This finding of the learned Tribunal on the ground that he is only a chance witness cannot be accepted. He has clearly stated that he had no other work and therefore, he went in this lorry. Probably just because he was known to the driver and because he did not have any other work, he accompanied him to go to Ranebennur. We cannot find fault with the normal human conduct which he has disclosed on that particular day. It is not brought out in the cross-examination as to why he has supported the case of the appellant. It is not even suggested to this witness that he is a relative of these appellants and that with oblique motive to help them, he is deposing falsehood. On the other hand, it clearly discloses that while he was in the lorry, the lorry met with an accident. All that he has stated in his evidence is that the parked lorry did not have the parking lights put on and stones were not put surrounding the lorry and because of on coming carts from the opposite direction, the driver had taken the lorry to the left side resulting in the accident. Therefore, dubbing P.W.2 as a chance witness cannot be accepted. On the other hand, from a careful scrutiny of this witness I hold that he has come out only with the truth and he has given a true picture of the manner in which the accident had taken place. Under the circumstances, the evidence of P.W.2 is acceptable only to the extent as to how the accident had taken place. From the evidence of this witness it is clear that the lorry was parked by the side of the road. The lights were not put on and no indications were given by placing stones surrounding the lorry. Further, the lorry driver had taken this lorry to its left side in order to give room to the on coming carts. With this background, it is now necessary to consider the decisions relied on by the learned advocates for the respective parties.
9. It is held in a decision reported in ORIENTAL FIRE AND GENERAL INSURANCE CO. LTD., v. DEEP KAUR 1980 ACJ 100 that when a truck was parked on the metal road on the left side of the road without taking proper precautions or lights put on to indicate such obstructions on the road and when a car came and struck against the rear side of the truck, the car driver was held to be guilty of contributory negligence to the extent of 1/4. Similarly in PREMLATA NEELAMCHAND SHARMA v. HIRABHAI RANCHOD BHAI PATEL 1983 ACJ 290 it is held that during the foggy night when the truck was parked on the high way road causing the scooterist to dash against it, it was held that it was for the respondents to prove not only the presence of both but also the working condition of those lights and reflectors. Similarly, in PUSHPA RANI CHOPRA v. ANOKHA SINGH 1975 ACJ 396 it is held that when the truck was parked on the main road and the night was dark and there was no street lamp, the truck driver was negligent by causing obstruction or inconvenience to the other users of the road. From this it is clear that if the park lights are not put on and there is not other attempt to indicate to the oncoming drivers during night times, that itself is negligence on the part of the driver of the vehicle who parked it by the side of the road. In this case also P.W.2 has categorically stated that the park lights were not on and admittedly, the deceased was driving during night time after 8 P.M. Further, he had also noticed carts coming from the opposite direction and therefore, he has taken his lorry to the left side. However, the learned Tribunal has rejected the evidence of P.W.2, as untrustworthy - after having quoted the decisions referred to above, distinguished on facts to the effect that the deceased himself was responsible. Under those circumstances, I held that the driver of the truck also was responsible for this accident. However, the deceased could have also avoided and averted this accident if he was diligent. It is not the case that his truck had no light on that particular day. If he was not driving rashly or negligently he also could have noticed the parked truck. Therefore, I hold that some percentage of negligence also will have to be attributed to this deceased driver. However, I hold both the drivers were negligent to the extent of 50% each. It is necessary to mention here that the respondents have not let in any evidence to show that the driver of the truck Uday Shrirang Jadhav had taken all precautions as required under the Motor Vehicles Act. He has also not been examined to show that there was no negligence on his part in parking the vehicle. These are the facts which will have to be established by both the parties as the Court will have to find out the negligence only on the basis of preponderance of probabilities which can be done only by weighing the evidence available on record.
10. Having come to this conclusion, the next question that arises for consideration is in regard to the quantum of compensation for which the appellants are entitled to. P.W.1 has stated that the driver Dhani Kumar was getting Rs. 600/- P.M. According to her, he was paying the entire amount to her to run the house. They were fully dependent on his earning. All other appellants are minors and they are school going and the P.W. 1 has stated that she is doing cooli work to maintain the children. Under those circumstances and in view of the Judgment of the Supreme Court, we have to hold that the monthly contribution to the family by the deceased was Rs. 400/- because 1/3rd of the income of the deceased has to be deducted towards his personal expenses. Therefore, his contribution to the family can be taken as Rs. 400/- per month. The deceased was 38 years according to the claim petition. However, no documentary evidence is produced in this case, and admittedly he was driving the lorry. It can be inferred that he was between 40 and 45 years. The maximum multiplier applicable is '18'. Taking into consideration his age, I hold that multiplier of '12' could be applied which comes to Rs. 57,600/- (Rs. 400/- x 12 x 12 = Rs. 57,600/-.
11. P.W. 1 also has stated that the spent Rs. 1000/- towards funeral expenses. Further, the appellant No. 1 being the wife is entitled for a sum of Rs. 5,000/- towards loss of consortium and all the appellants are entitled for a sum of Rs. 5,000/- towards loss of estate. Thus, the appellants are entitled for a total compensation in a sum of Rs. 68,600/-. Out of this amount, 50% will have to be deducted as the accident occurred due to contributory negligence on the part of the deceased. Thus, the appellants are entitled for a total compensation in a sum of Rs. 34,300/-.
12. The Learned Counsel appearing for the respts. have vehemently argued that since the accident occured due to his own negligence, his legal representatives are not entitled for compensation. In support of their argument, he relied on a decision reported in D. JAYAMMA AND ANR. v. S. GOVINDASWAMY AND ORS 1982 ACJ 467. In that case the facts are that the driver lost control of the lorry while negotiating a curve. The lorry fell into the ditch resulting in the death of the driver. It is held that the legal representatives of the deceased driver are not entitled to maintain petition for compensation, because the accident was the result of the rash and negligent driving of the lorry by the deceased himself. The remedy lies under the Workmens' Compensation Act. The facts of this case are not applicable to this case because there was no negligence on the part of the other side. On the other hand, it was because of his own fault that he fell into the ditch and died.
13. Similarly, he also placed reliance on a decision reported in Y.R. SHANBHAG v. MOHAMMED GOUSE AND ORS. 1991 ACJ 699 wherein it is held that the driver who sustained injury due to his own driving cannot maintain claim application under Section 110-A against his owner and insurer. The remedy available is before the Commissioner for Workmens' Compensation. In that case also, it was fully established that the driver himself was responsible for the accident and there was no contributory negligence on the part of the other vehicles driver. He also placed reliance on a decision between NEW INDIA ASSURANCE CO. LTD. v. SUSAMMA VARGHESE 1990 ACJ 521 reported in. In that case, the scooter skidded resulting in the death of the owner-driver of the scooter. No case was made out that the accident was the result of the rash and negligent driving of the scooter by the deceased. It was held that the accident was inevitable or unavoidable one, there cannot be a claim under the law of Torts in India and claim cannot be put forward under Section 110-A of the Motor Vehicles Act. In view of the facts narrated earlier, the facts of these cases are not applicable to the facts of the case in the decisions cited above.
14. The next question that arises for consideration is as to who is liable to pay the compensation to the appellants. As stated earlier, the appellants have made the owner, the insurance company of that lorry which was being driven by the deceased and also the lorry owner, driver and the insurance company bearing No. MHF 1336. I have already held that the accident occurred due to the contributory negligence on the part of the deceased driver as well as the driver of the lorry bearing No. MHF 1336 to the extent of 50% on each side. Therefore, the appellants are not entitled to claim compensation as against the owner of the lorry where the deceased was employed. When the owner is not liable, the insurance company is also not liable to indemnify the owner. Under these circumstances, the petition as against the 1st and 2nd respondents herein, viz. Loganathan and United India Insurance Co., is liable to be dismissed. However, I hold that respondents 3 & 4 are jointly and severally liable to pay the compensation to the appellants. Admittedly, the said lorry No. MHF 1336 was insured with the 5th respondent herein. Therefore, 5th respondent is liable to indemnify the owner of the said lorry - 3rd respondent. Subsequently, 4th respondent has been deleted as unnecessary.
15. In the result therefore, I proceed to pass the following:
ORDER
The appeal is allowed in part holding that the appellants are entitled to a total compensation in a sum of Rs. 34,300/- with interest at 12% per annum from the date of petition till the date of realisation, with costs. Advocate's fee is fixed at Rs. 500/-.
Respondent 3 is liable to pay the said amount which shall be indemnified by the 5th respondent - the Oriental Fire & General Insurance Company, Hubli.