(1) FA. 167.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 167 OF 2010 New India Assurance Co. Ltd. .. Appellant VERSUS Mangal Shivaji Mundhe and others .. Respondents Mr. D.S. Kulkarni, Advocate h/f. Mr. S.L. Kulkarni, Advocate for the Appellant Mr. R.A. Tambe, Advocate for respondents 1 to 4 ... CORAM : K.U. CHANDIWAL, J. DATED : 19TH APRIL, 2010 ORAL ORDER:- 1] Heard both the sides extensively. Admit. 2] In accident, the deceased driver of the sumo crammed against the stationery truck KA-39/9451 at around 2-2:30 am. in the night intervening 3rd and 4th April, 2002. The panchanama at exhibit 39 illustrate the position at site. 3] The learned Judge on assessing the evidence and the position, reached to the finding of awarding compensation of Rs.3,14,200/- to the claimants/legal representatives of the deceased driver of the jeep holding 20% negligence to the driver and 80% (2) FA. 167.2010 negligence to the truck driver. This finding is basically questioned by the appellant Insurance Company. 4] The evidence from both the sides being lacking, the panchanama of scene of offence has pivotal role to be accelerated. The width of the road is around 25'. The right side tyres of the truck were 2' on the road and the rest portion was at the bank of the road. The crucial point is, was there any precautionary measure taken by the truck driver when the truck was parked due to tyre burst? The evidence and the finding of the learned Judge illustrate that there was no such indication of blinkers or operation of the tail lamp of the truck indicating to the back side of the truck of it's stationery position. Since both the sides did not adduce any evidence, the finding of the learned Judge, that there was no indication of tail lamp, can-not be said to be imaginary. The width of the road, indeed indicate that precautionary measures could have been taken by the driver of the truck to avert any accident atleast to make the vehicle coming from back side known about the truck. However, without there being any indication, or any bolders being put at a distance or any tree leaves put at a distance to avoid the impact of vehicle, the dash was in offing which took the precious life of the driver of Tata sumo. The impact was such high that the left (3) FA. 167.2010 side of the jeep virtually damaged, the jeep proceeded ahead 39' away from the road, it's top was smashed to pieces, lights had gone upto 100' away. This may not be adding to the velocity of the Tata sumo vehicle, however, it adds to the nature in which the truck was stationery. Consequently, the request by the learned counsel to hold proportionate negligence at 50% each, in fact situation, is difficult to digest. Though the learned Judge has observed the same to be 20% to the sumo jeep driver and 80% to the truck driver, however it was certainly based on the available evidence and now need not be traversed with while deciding the First Appeal. 5] There is no merit in this First Appeal. First Appeal stands dismissed. No costs. The amount deposited by the appellant insurance company be transmitted to the learned Judge, Motor Accident Claims Tribunal, Shrirampur. Sd/- (K.U. CHANDIWAL, J.) arp