1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.461 OF 1993 Rajesh Bajrang Jadhav Appellant VERSUS 1. Hanmantrao Sarjerao Nalavade, 2. Sau Suman Hanmantrao Nalavade, 3. Subhash Dagadu Pawar, 4. United Insurance Company Limited, Divisional Office No.13, 5. Ramesh Hanmantrao Nalavade, 6. Sau Alka Bharat Gaikwad, 7. Sau Malan Pandharinath Jadhav, 8. Sau Shalan Vijay Kadam, 9. Balkrishna Murlidhar Kale, 10. New India Insurance Company, Pune, 11. Anil Prabhakar Kudale Respondents Mr.A.Y.Sakhare, Sr.Advocate a/w Vishwajeet Mohite for appellant. Mr.G.H.Keluskar i/by N.V.Walawalkar for respondents 1 and 2. CORAM : A.S.OKA, J. DATE : 05th December 2009 JUDGEMENT :- 1. Heard learned counsel for the appellant and the learned counsel appearing for the first and second respondents. For the sake convenience, the parties are hereinafter referred to with reference to their status before the Tribunal. The appellant is the opponent no.2 and the first and second respondents are the original claimants. The claimants 2 claimed compensation on account of death of their son Sanjay in a road accident on 31st January 1991. The deceased Sanjay was travelling in a tanker owned by the appellant-opponent no.2 which was driven by opponent no.1. The tanker was proceeding from Satara to Mumbai along the Mumbai-Bangalore national highway. At about 8.15 p.m. when the tanker reached village Pachwad, Tal. Wai, District Satara, there was another tanker parked on the road in front of the said tanker. The tanker in which the deceased was travelling gave a dash to the stationary tanker. After giving a dash, the tanker collided against the railing of a bridge and fell into the ditch nearby. The deceased Sanjay along with three other persons travelling in the tanker died as a result of the accident. The opponent no.3 is the Insurer of the tanker in which the deceased was travelling. The opponent no.8 is the owner of the stationery tanker and opponent no.10 is the Insurer of the stationery tanker. 2. The Tribunal by the impugned judgement and award held that the claimants are entitled to total compensation of Rs.1.00 lakh with interest thereon @ 12% p.a. The Tribunal held that the drivers of both the tankers were equally responsible for the accident and, therefore, liability of the owners of the tankers' was fixed at Rs.50,000/- each with interest thereon and proportionate costs. The learned Member of the Tribunal held that the deceased was travelling as a gratuitous passenger in the tanker owned by opponent no.2. Therefore, the insurer of the tanker i.e. opponent no.3 was exonerated by the Tribunal. 3. The submission of the learned counsel for the appellant is that the accident occurred entirely due to negligence on the part of the driver of the stationery tanker. He pointed out that the accident occurred in the night on Mumbai-Bangalore national highway. He submitted that the driver of the stationery tanker had parked the tanker on the highway without taking necessary precautions. He pointed out that there was a bridge slightly ahead of the spot where the tanker was parked. He pointed out that there was no reason for the learned Member to come to a 3 conclusion that the driver of the tanker owned by opponent no.2-appellant was guilty of negligence. He, therefore, submitted that the entire liability was that of opponent nos.8 and 9. He, therefore, submitted that the impugned award needs modification. I also heard learned counsel for the claimants (first and second respondents). None appears for the other respondents. 4. I have given careful consideration to the submissions. The drivers of both the tankers stepped into the witness box. The driver of the tanker owned by opponent no.8 was one Anil Prabhakar Kudale. The version of the accident given by the said driver reads thus :- "... ... On the day of the accident i.e. on 31.1.1991 I had come from Pune with the tanker full of petrol. The petrol was emptyed at the petrol pump at Satara. Thereafter I started journey back to Pune from Satara, petrol pump. About 400 to 500 feet before Pachwad bus stand, I stopped my vehicle, by the side of the road and got down for urine. In the meantime another tanker full of tar came from Satara side and collided against my tanker from behind. The tar tanker was bearing No.MH-10/A-2252. On account of the dash, my vehicle was forced ahead. That tanker after hitting my vehicle, went ahead, further collided against hedge of the bridge ahead and fell down in the bridge beneath." In the cross examination made by the claimants, the witness admitted that he stopped the vehicle at 8.30 p.m. when it was all dark. He stated that a bridge was at a distance of 100 feet from the spot at which he stopped the tanker. He admitted that on either side of the road at that spot there was a slope. He denied the correctness of a suggestion that on both sides of the road there was Kaccha road. It is pertinent to note that the driver admitted that it was all dark at 8.30 p.m., when he stopped the tanker and 4 proceeded to answer the call of nature. He has not stated that the tanker was parked on extreme left side of the road and that he had put on parking lights or any other signal on the rear side of the tanker. 5. As against this, the Cleaner of the truck of opponent no.2 stated that the accident occurred when the truck was being driven at the speed of 50 to 60 kilo meters per hour. He stated that the tanker owned by opponent no.8 overtook his tanker and suddenly stopped the tanker near "no parking" sign board. Though the brakes were applied, the tanker dashed against the stationery tanker. He stated that the impact took place on the tar road and not on the kaccha road. He stated that after the impact he himself and the driver jumped out of the tanker. Thus, he clearly stated that the tanker was parked on the tar road. In fact, in the cross examination he stated that as there is a bridge near the spot where the tanker was parked, there is practically no kaccha road on either sides of the road. The said Cleaner was cross examined by the advocates for opponent nos.8 and 9. There is hardly any challenge to the version of the accident during the cross examination of the said witness. 6. Thus, the facts which emerge are :- (i) the driver of the stationery tanker stopped the tanker at 8.30 p.m. on main part of the Mumbai-Bangalore national highway; (ii) it was totally dark at the spot where the tanker was parked; (iii) the driver of opponent no.8 has not come out with the case that he had put on parking lights or had displayed any signal on the rear side of the truck; (iv) the driver of opponent no.8 has admitted that there was a bridge ahead of the spot where the tanker was parked and that there is slope at that spot on both the sides of the road. 5 (v) There is an unchallenged statement of the cleaner of the appellant's truck that the tanker was parked on the tar road and at that place there was hardly any kaccha road on both sides. 7. As the driver of the opponent no.8 had taken the risk of parking his tanker on the busy highway like of Mumbai-Bangalore national highway, he should have taken all the precautions especially when he had parked the truck at 8.30 p.m. in the night. He chose to park the truck on the main highway itself at a place were there was no kaccha road and there was a slope on both sides of the roads. Admittedly there was a total darkness at that time. Therefore, it is very difficult to attribute negligence to the driver of the appellant. In fact, the Tribunal has given no reasons for coming to the conclusion that even the driver of opponent no.2-appellant was guilty of contributory negligence. Thus, the only conclusion which can be drawn is that the accident occurred due to negligence on the part of the driver of the tanker owned by opponent no.8. The opponent is admittedly the insurer of the truck at the time of the accident. Hence, the impugned award needs modification to that extent. 8. Hence, I pass following order :- (A) The operative part of the impugned judgement and award shall be substituted by following :- "The claim petition is partly allowed. The opponent nos.8 and 9 shall jointly and severally pay a sum of Rs.1.00 lakh to the claimants together with proportionate costs and future interest @ 12% p.a. on the said amount from the date of filing of the claim petition till realisation" (B) If the appellant (opponent no.2) has paid any amount on account of no fault liability to the claimants, he shall be entitled to recover the said 6 amount from opponent nos.8 and 9 by executing this award and for that purpose it will not be necessary for the appellant to initiate any separate proceedings. It is, however, made clear that the appellant will not be entitled to recover the said amount from the claimants; (C) The amounts deposited by the appellant with this Court and with the Tribunal shall be paid over to the appellant together with interest accrued thereon; (D) Time of four months is granted to the opponent no.9 (The New India Assurance Company Limited) to comply with the modified award by depositing the requisite amount with the Tribunal; (E) The appeal is allowed in above terms with no order as to costs; (F) Record and proceedings, if any, be sent to the Tribunal. (A.S.OKA, J.) Kondvilkar