1 FA 950.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 950 OF 2010 1. Smt. Latabai W/o Mukundprasad Dixit, Age : 44 Years, Occu. : Service & H. H., 2. Jayesh S/o Mukundprasad Dixit, Age : 18 Years, Occu. : Nil, Both R/o Manthale Nagar, Latur, Tq. & Dist. Latur. .. .. Appellants. Versus 1. Sanjay S/o Dnyanoba Lokhande, Age : 27 Years, Occu. : Truck Driver, R/o Awargaon, Tq. Dharur, Dist. Beed. 2. Jamal S/o Makbul Sheikh, Age : about 40 Years, (Major) Occu. : Business, R/o Ambajogai Road, Kaij, Tq. Kaij, Dist. Beed. 3. Chiman S/o Laxmanlal Lande, Age : About 42 Years, Occu. : Business, R/o Shelpimpalgaon (Doundkarwoeli) Tq. Khed, Dist. Pune. 2 FA 950.10 4. Kishor S/o Ramprasad Mishra, Age : 45 Years, Occu. : Agril., R/o Manthale Nagar, Latur, Tq. & Dist. Latur. 5. The New India Assurance Co. Ltd. Through Its Branch Manager, Branch Office, Chandra Nagar, Latur. 6. Bajaj Allianz General Insurance Co. Ltd. through its Manager, 02nd Floor, Rajendra Bhavan, Adalat Road, Aurangabad. .. .. Respondents Shri R. B. Deshpande, Advocate for Appellants. Shri V. V. Bhavthankar, Advocate for the Respondent No. 1. Shri R. T. Deshmukh, Advocate for the Respondent No. 2. Shri M. M. Ambhore, Advocate for the Respondent No. 5. Shri S. G. Chapalgaonkar, Advocate for the Respondent No. 6. The Respondent Nos. 3 and 4 served. CORAM : S. V. GANGAPURWALA, J. DATE : 05TH APRIL, 2011. JUDGMENT : . The present appellants are the original claimants. They had filed claim petition before the Motor Accident Claims Tribunal, Latur claiming compensation on account of death of 3 FA 950.10 deceased son of appellant No. 1 and brother of appellant No. 2. The Tribunal held that the claimants are entitled to recover compensation of Rs. 4,30,000/- including the amount received by the claimants under no fault liability. But further held that negligence on the part of respondent No. 1 would be only 30% and as such, respondent Nos. 1 to 3 and 5 would be liable to pay 30% of the amount i. e. Rs. 1,30,000/- to the claimants. The claimants being aggrieved by the decision holding the deceased negligent to the extent of 70% and the respondent No. 1 negligent only to the extent of 30% have filed the present appeal. 2. Shri Ram Deshpande, the learned counsel for appelants state that, it was erroneous on the part of the Tribunal to hold that the deceased was more negligent i. e. to the extent of 70%. The accident had taken place at night. The truck was standing in the middle of the road. It was in stationary condition, due to air lock. Even the lights of the truck were not in use. As such, at the night time the deceased who was driving the motorcycle could not have viewed the said truck. As such, it cannot be said that the deceased was more negligent. In fact, it was the negligence of the driver of the truck i. e. at the night time he had kept the truck on the middle of the road that too without putting 4 FA 950.10 on lights. The learned counsel further contends that the pillion rider of the motorcycle had also filed the claim petition bearing M.A.C.P. No. 295/2006 and in that case the driver of the truck i. e. the respondent No. 1 was held negligent to the extent of 70% and the Insurance Company has accepted the said judgment. In the light of that, it was erroneous to hold the respondent No. 1 liable only to the extent of 30% negligent. 3. Per contra Shri Ambhore, the learned counsel for the Insurance Company submitted that the offence is registered against the deceased. It is false to say that the parking lights were not put on of the truck. The deceased himself was driving the motorcycle. He was expected to drive the motorcycle cautiously and big vehicle like truck could not have gone unnoticed, if he would have driven with due diligence. According to the learned counsel the Tribunal has rightly considered all the aspects. Just because in another matter filed by the pillion rider the truck driver is held liable to the extent of 70%, that cannot be yardstick to arrive at conclusion of negligence. 4. With the assistance of learned counsel I have gone through the judgment and the record and proceedings. It appears from 5 FA 950.10 the record that the Tribunal has arrived at a conclusion that the deceased would be responsible for the accident to the extent of 70% only on the ground that a truck could be noticed from long distance, even though the motor bike was coming from opposite or rear side. When the truck was stationary standing in the middle of road that itself is an act of negligence. Moreover, there is nothing on record to show that parking lights of the truck were put on when the accident took place. Merely, because a FIR is registered against the deceased does not ipso facto prove negligence of the deceased. The truck driver has not examined himself. As such, adverse inference can be drawn against him. He would have been the best witness on behalf of the respondent to throw light about the position of his vehicle. But he choose not to step in the witness box. Even the person who had come after 10 minutes of the accident, he has deposed that the parking lights of the truck were not on. This also leads credence to the case of the appellants. Moreover, in respect of same accident when the heirs of pillion rider of the motor cycle had filed a petition, in the said petition it was held that the truck driver was responsible to the extent of 70% and the deceased was responsible only to the extent of 30%. The said judgment has been accepted by the Insurance Company as is fairly admitted by 6 FA 950.10 the learned counsel. In such circumstances, for the same accident there cannot be two different yard-sticks about negligence. 5. Taking into account the above conspectus of the matter, I feel that the truck driver was negligent to the extent of 70%. 06. In the result, the appeal is allowed. 07. It is held that the driver of the truck was negligent to the extent of 70%. In that light of the matter the appellants would be entitled to a total compensation of Rs. 3,01,000/- i. e. additional amount of Rs. 1,72,000/- from respondent Nos. 1, 3 and 5. The appellants have withdrawn the amount of Rs. 1,29,000/- along with interest deposited by the Insurance Company. The respondent Nos. 1, 3 and 5 are jointly and severally liable and are directed to pay remaining amount of Rs. 1,72,000/- to the appellants with interest @ Rs. 6% per annum from the date of application. No costs. [ S. V. GANGAPURWALA, J. ] bsb/April 11