IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 MACA.No. 260 of 2003() ---------------------- OPMV.966/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT/2ND RESPONDENT: -------------------------------------- NATIONAL INSURANCE COMPANY LTD., REP.BY ITS DEPUTY MANAGER, REGIONAL OFFICE - T.P.CELL, M.G.ROAD, ERNAKULAM. BY ADV. SRI.P.R.RAMACHANDRA MENON RESPONDENTS/CLAIMANTS 1 TO 5 & RESPONDENTS 1,3&4 RESPECTIVELY: ----------------------------------------------------------------- 1. K.V.USHA, W/O. LATE A.C.VASUDEVAN, AGED 43 YEARS, SIVANKOIL HOUSE, SOUTH STREET, OLD BAZAR, KOLLENGODE, CHITTUR TALUK, PALAKKAD DISTRICT. 2. SHOBA D/O. LATE A.C.VASUDEVAN, AGED 25 YEARS, DO. DO. 3. SATHEESH S/O. LATE A.C.VASUDEVAN, AGED 23 YEARS, DO. DO. 4. MANJULA D/O. LATE VASUDEVAN, AGED 21 YEARS, DO. DO. 5. VELLACHI W/O. LATE CHELLAPPA MANNADIAR, AGED 70 YEARS, AANIYAPPA THARAVAD, THOTTAKKATTU THARA, KODUVAYOOR, CHITTUR TALUK, PALAKKAD DISTRICT. 6. GURBUX SING S/O. SH.JALLOR SING, AGED NOT KNOWN, A.-8 SANJAI NAGAR, DELHI. 7. M/S.GATI DESK TO DESK CARGO, 1TH MILE, THUMKUR ROAD, MADHUVANA, NELAMANGALA TALUK, BANGALORE. MACA.260/03 8. THE NEW INDIA ASSURANCE COMPANY LTD., HOTEL TIFANY'S ANNEXE, NO.23/2, VITTAL MALLAYA ROAD, (GRANT ROAD), BANGALORE. ADV. SRI.V.CHITAMBARESH FOR R1 TO 5 SRI.T.C.SURESH MENON FOR R1 TO R5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A.NO.941/2003 IN M.A.C.A.NO.260/2003 DISMISSED. 28.10.2008 SD/- J.B.KOSHY, JUDGE SD/- K.P.BALACHANDRAN, JUDGE /TRUE COPY J.B.KOSHY & K.P.BALACHANDRAN, JJ. ------------------------------- M.A.C.A.NO.260 OF 2003 () ----------------------------------- Dated this the 28th day of October, 2008 J U D G M E N T KOSHY,J. This appeal is filed by the Insurance company challenging the finding of negligence of the vehicle insured by it. The husband of the 1st respondent, an ex-service man, who was working as a driver in a van sustained fatal injuries in the motor vehicle accident on 18.1.1996. The van driven by the injured hit the back of a lorry insured by the appellant Insurance company. It is the contention of the claimants that the accident occurred solely because of the negligence of the lorry which was parked in the National Highway without any parking light. Nobody is expected to park a vehicle at a place which is not meant for parking. Accident occurred at 2.45 a.m. and therefore, according to the claimants, accident occurred only due to parking of the lorry in the non-parking MACA.260/03 2 area without parking light. It is the contention of the appellant that the vehicle was parked on the side of the road. But considering the scene mahazar and other evidence, it was found that the lorry was parked in the National Highway. There was also fog. However, it was also found that the van driver was also negligent. In the absence of clear evidence, alleged negligence was apportioned equally between the van driver and the driver of the lorry which parked the lorry without observing the Motor Vehicles Rules, and therefore, only 50% of the compensation calculated was awarded. We are of the view that no interference is required in the award, and hence, this appeal is dismissed. J.B.KOSHY, JUDGE K.P.BALACHANDRAN, JUDGE prp J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------------------------- M.A.C.A.NO.260 OF 2003 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 28th October, 2008