IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1149 of 2009 Date of decision:28 .07.2010 The New India Assurance Company Limited ....Appellant versus Gurmail Singh and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Raj Kumar Bashamboo, Advocate, for the appellant. Mr.Parveen K. Kataria, Advocate, for respondents 7 and 8. Mr. Pardeep Goyal, Advocate, for respondent No.9. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. 1. The case stems out of the accident involving a collision of a truck in which the deceased was travelling with the yet another truck which was said to be stationary. The insured was of the stationary truck and the insurer in appeal is the insurer for the said stationary vehicle. The Insurance Company denies liability on the ground that there was a share negligence on the part of the driver of the vehicle in which the deceased was travelling and that the driver of the said truck did not even have a valid driving licence. It was further suggested that since the vehicle was FAO No.1149 of 2009 - 2 - hit from behind the stationary truck, it must only be taken that there was no negligence on the part of the owner or the driver of the stationary truck and the liability must have been fastened only on the owner of the vehicle in which the deceased was travelling. 2. The Tribunal had before it the evidence to the effect that the insurer's driver had parked the vehicle and the accident arose only by the other truck dashing it at the rear side. Clearly it was a case of contributory negligence of the driver of the insurer's vehicle parking his truck on the road and the driver of the vehicle in which the deceased was travelling had not applied sufficient caution to avoid the collision. In a situation similar to the above case where one vehicle was at fault in parking the vehicle on a highway in a dangerous position and yet another vehicle hitting the stationary vehicle from the rear side, on the facts proved, the Hon'ble Supreme Court in Rajrani and others Versus Oriental Insurance Company-(2009) 13 SCC 654 upheld the finding of the High Court regarding contributory negligence and apportioned the liability as 50:50. It is no defence to an insurer to even contend that the vehicle had remained stationary due to mechanical defect. Even if there was a mechanical defect, it should have been manually pushed to a safe corner of the road where there was no movement of the vehicle on the highway. Under the circumstances, I set aside the finding of the Tribunal that it was only the 1st respondent's vehicle which was wholly responsible for the accident. I would, on the other hand, apportion equally the liability between both the vehicles. 3. Having regard to the fact that I have found that the vehicle FAO No.1149 of 2009 - 3 - in which the deceased was travelling had also contributed to the accident, the liability of the Insurance Company for the 1st respondent which is now in appeal, shall be restricted only to 50%. The deceased was a workman in the vehicle and 50% liability is to be affixed to the vehicle in which the deceased was travelling. The duty to indemnify shall be extended to the owner of the vehicle since a workman is bound to be covered for risk by virtue of the provisions under Section 147(2) proviso of the Motor Vehicles Act. The Oriental Insurance Company which was as 9th respondent will therefore be bound to share the liability of 50% while the appellant would bear the liability of another 50%. The award of the Tribunal is, under the circumstances, modified to provide for apportionment of liability as determined by the Tribunal as 50:50 and while the appellant is liable for 50% of the award, the remaining shall be borne by the 9th respondent. The appellant will therefore be entitled to seek for a contribution for half of the amount of what it has paid or what is liable to pay as an insurer from the 9th respondent. The claimants will not come to any harm by any reduction of their entitlement. Even if the whole amount has not been paid by the appellant, the liability shall still subsist and a right of obtaining contribution shall be exercised only against the insurer namely, the 9th respondent. The award of the Tribunal is modified and the appeal is disposed of in the above terms. (K.KANNAN) JUDGE 28.07.2010 sanjeev