IS IT LEGAL TO PARK THE VEHICLE WITHOUT INDICATOR LIABILITY IN CASE OF MOTOR VEHICLE ACCIDENT CLAIMS.

 

IS IT LEGAL TO PARK THE VEHICLE WITHOUT INDICATOR

LIABILITY IN CASE OF MOTOR VEHICLE ACCIDENT CLAIMS.

The liability of a vehicle which has been parked on the road side without indicator in motor accidents claims has been discussed in 2020 (2) TNMAC 74 (SC) Jumani begam VS Ram narayan & ors.

The brief of the case is as follows:

The accident took place in the year 2008. The deceased was 53 years old at the time of incident. He was employed as an assistant grade II in the water resources department of the state of chattisgarh on a monthly salary of Rs.12,636. While he was riding his motor cycle at about 9 pm on Bilaspur – Raipur road, there was a collision with a truck – trailor which was parked on the road and he died on the spot. The appellant who is the surviving spouse of the deceased, filed a claim for compensation under the provisions of the motor vehicles act 1988. Claiming compensation in the amount of Rs. 17,50,000/. The truck driver, the owner of the vehicle and the insurer were impleaded as parties to the proceedings. The MACT by its order came to a conclusion that this was a case of contributory negligence. The claim for compensation was computed as follows

Loss of dependency                                 Rs.7,51,476/

Funeral expenses                                     Rs.       5,000/

Loss of love and affection                       Rs.       5,000/

Loss of property                                       Rs.        2,500/

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Total                                                            Rs.7,63,976/

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However based on contributory negligence on the part of deceased, 50% has been deducted and a total amount of Rs.3,81,988 came to be awarded, together with interest at six percent per annum.

In the appeal the high court confirmed the view of the MACT on contributory negligence, but recomputed the compensation. Taking the monthly income of the deceased at Rs.12,636, one third was deducted towards personal expenses. Applying a multiplier of 11, the deceased being 53 years of age, the total amount payable was computed at Rs.11,12,000 on account of loss of dependency. A lumpsum of Rs.1,25,000 was awarded by the high court towards conventional head. Since the high court had affirmed the view of the MACT on contributory negligence, the total compensation was enhanced from Rs.3,81,988 to Rs.6,81,000.

Learned counsel appearing for the appellant has assailed the view which has found acceptance with the high court, both on the finding of contributory negligence and on the computation of compensation. On the first aspect the learned counsel submitted that the order of the MACT indicates that there was an independent witness who had deposed that the truck – trailor was parked without any reflectors on the road. It was urged that though the MACT accepted the evidence of independent witness, it came to the conclusion that there was contributory negligence on the part of the deceased without cogent reason. The high court, it has been submitted simply proceeded to affirm the view of the MACT without giving reasons in spite of the fact that it was seized of a substantive appeal against the order of the MACT. On the computation of compensation, learned counsel submitted that in terms of the judgment of the constitution bench of supreme court in national insurance company VS pranay sethi, 2017 (2) TNMAC 609 (SC), the high court ought to have added an amount of 15% towards future prospects having regard to the age of the deceased and the fact that he is in government employment.

On the aspect of contributory negligence, the MACT adverted to the statement of AW2, who was an independent Eye – witness at the spot of the accident, in the following terms:

“As per an eye – witness to the accident, on behalf of the appellant, the statement of AW 2 has been recorded. According to this witness, at the time of accident he was going from his house situated in Dharsiva to the Dhaba situated at about 2 – 2.5 kms away from Dharsivan to eat food on the Bhilaspur road and when he had reached near sagar family restaurant and dhaba ,then suddenly from the side of Bilaspur, mirza jumman beg has come and collided on the backside of the truck parked on the road on the left side which truck was of 16 tyres and he had fallen with the hero Honda motor cycle. This witness has further stated that after eating the food in the dhaba when he was returning back, he came to know that mirza jumman beg has expired. In cross examination this witness has stated that truck trailor was parked facing Raipur i.e., its rear was facing bilaspur. In cross, this witness has denied that there was a radium reflector on the rear side of the truck – trailor. This witness has not been given a suggestion in the cross examination that the indicator of the truck trailor was lit. In the cross examination this witness has denied that any bush, etc. had been put on the side of the truck – trailor as indication mark”

The MACT then discussed the evidence of the driver of the truck trailor, NAW1. After analyzing the evidence of the driver, the MACT held that his evidence did not inspire confidence, when he stated that indicators on truck – trailor had been lit. On the contrary, the eye witness, AW2, in the course of his cross examination, denied the existence of reflectors at the spot. The MACT noted that it did not appear that the truck trailor had been parked outside the area of the pakka road. In spite of its analysis in the above terms, the MACT surmised that if the lights of the motor cycle were lit, the deceased would have been able to avoid the accident. This part of the reasoning of the MACT is purely a matter of surmise. Once the substantive evidence before the MACT established that the truck – trailor had been parked on the road at night without any reflectors, we are of the view that there was no view or justification for the MACT to proceed on the basis of conjecture in arriving at a finding of contributory negligence. It is  find from the judgment of high court that this aspect has not been discussed at all and the high court simply proceeded to confirm the finding of contributory negligence. Consequently, on the first limb of the submission, learned counsel appearing for the  appellant is correct and the submission required to be accepted.

The insurer of the truck – trailor shall deposit the difference in compensation before the MACT, Raipur. Hence it is decided that parking vehicle on the road side without indicator is against the rules of motor vehicles act and liable for legal consequences.