JUDGEMENT Deepak Verma, J. Sri B.C. Seetharama Rao with Kum. Preeti, learned Counsel appeared for the appellant, Ms. Gunasheela L. for Sri P. Prabhakar Shetty & Sri K. Giridhar, learned Counsel appeared for respondents Nos. 1 and 2 and Sri. A.N. Krishnaswamy, learned Counsel appeared for respondent No.3, None appeared for respondent No. 4. 2. Appeal is by insurer of lorry bearing registration No. MWY 7588, against award dated 19.04.2004 passed by MACT, DK., Mangalore in M.V.C.No1514/1999, whereby and whereunder for death of Bhujanga son of respondents 1 and 2, a total amount of Rs. 3,10,500/- together with interest at the rate of 6% has been awarded. The liability of the appellant insurer has been assessed at 50%, whereas for remaining 50%, the liability has been fastened on respondent NO.3 herein, the insurer of the other vehicle. 3. In the following circumstances, the accident had taken place. On 24.07.1999 at about 2.30 a.m. Bhujanga, deceased was travelling in a tempo trax bearing registration NO.KA-19 M-7390, which hit a parked lorry bearing registration No. MWY 7588 insured with the appellant herein. According to claimants respondents 1 and 2 herein, accident had taken place solely on account of rash and negligent driving of tempo trax by its driver, as it had hit the parked lorry, which was on the left edge of the road. The impact of tempo trax against the lorry was so violent that Bhujanga had sustained severe bodily injuries and ultimately succumbed to the said injuries in Padmavathi Hospital, Surathkal after few hours. 4. The claim petition was initially filed only against the driver, owner and insurer of the tempo trax. Notices of the claim petition were issued to them. They appeared and contended that in any case, entire fault cannot be placed on the driver of the tempo trax as the accident had taken place in the mid-night against a parked vehicle, whereas parked vehicle was negligent in parking it without any signals or any other warning in this regard. Thus against the parked lorry case of contributory negligence was pleaded. Subsequently owner, driver and insurer of lorry were also joined as respondents in the claim petition. On the strength of the said pleadings, issues were framed. Parties led evidence. 5. Thus against the parked lorry case of contributory negligence was pleaded. Subsequently owner, driver and insurer of lorry were also joined as respondents in the claim petition. On the strength of the said pleadings, issues were framed. Parties led evidence. 5. After evidence of parties was closed and the matter was posted for arguments, the claimants filed LA.No.8 under Order 6, Rule 17 of CP.C praying to treat their claim petition as one under Section 163-A of the Motor Vehicles Act, 1988 (hereinafter referred to as 1988 Act) together with prayer for certain consequential amendments in the petition. On the same date, yet another application LA.9 was filed by the insurer of the lorry under Order 1, Rule 10 of CP.C, with a prayer to delete the owner and insurer of the lorry contending that they are not necessary parties on the ground that the claim petition has been converted into, Section 163-A of Motor Vehicles Act. It was contended by the appellant herein that Section 163-A would be applicable against moving motor vehicle but not against a parked motor vehicle. 6. Vide impugned award, these two IAs. were also considered by the Tribunal before it proceeded to record its finding on merits and on the issues so framed. I.A.8 filed by claimants under Order 6, Rule 17 of C.P.C with a prayer for conversion of petition from Section 166 of the Act to Section 163-A of the Act was allowed, whereas I.A.No. 9 filed by the appellant for deleting the names of owner and the appellant from the array of respondents was rejected. Thus for all practical purposes, the petition filed by claimants would be treated as one filed under Section 163-A of the Act. 7. Learned Counsel for appellant strenuously submitted before us that in the light of averments made by the claimants and especially after conversion of petition to one filed only under Section 163-A of the Act, no liability could have been fastened on the appellant. It was also contended that in view of admitted position as appearing from the record, no actionable claim would lie against the appellant. 8. Lastly it was contended that in any case no negligence could have been attributed against the lorry which was parked on the left side of the road. Consequently no liability could have been fastened on the appellant. 9. 8. Lastly it was contended that in any case no negligence could have been attributed against the lorry which was parked on the left side of the road. Consequently no liability could have been fastened on the appellant. 9. No doubt it is true that this appellant was joined as one of the respondents subsequently, but this appellant did not make any prayer for examining the driver of the lorry. As per the pleading and averments made in the petition and the evidence available on record, it is amply proved that accident had taken place in the middle of night at about 2.30 a.m. during rainy season. There is nothing on record to show that while the lorry was parked on the left side of the road, indicators were there to show that lorry was parked. No blinking lights were kept on the lorry or the parking lights were on, to negate this fact. 10. It is a matter of common knowledge that in night on account of glare of lights of the on coming vehicle, momentarily it becomes difficult to see as to what is parked on the left side of the road. Driver of the other vehicle presumes that the left side of road is vacant from where he can pass through comfortably, little realizing that any vehicle may be parked on the left side of the road. That is how most of the accidents take place in night. 11. In this view of the matter, we are of the considered opinion that there was contributory negligence on the part of driver of the lorry. If there was contributory negligence on the part of the lorry, obviously liability has to be fastened on the appellant toto. 12. Profitably we may quote provision of Section 126 of the Act, which reads as thus" "Stationary vehicles: No person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place, unless there is in the drivers seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other measures taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver." 13. Firstly, there is nothing on record to show that on the driver seat, 9 person duly licensed to drive a lorry was available. That could have been proved only if driver of the offending lorry had appeared as a witness, which he did not do so. 14. Evidence of P.W.1 Chennappa Shettigara, father of deceased and P.W.2 Kumar Shettigara, an eyewitness show that accident had taken place near Surathkal Post Office, which falls within the Municipality area. Thus provision of relevant Rule will have full application to the facts of the case. 15. Karnataka Motor Vehicles Rules, 1989. Sub-rule (2) of Rule 214 relevant for the purposes reads as thus: "214. Use of lamps when vehicle at rest: (1)........ (2) Outside the limits of any Municipal Corporation, Municipality or Cantonment, if a motor vehicle is at rest within the hours during which lights are required in such a position or not to cause danger or undue inconvenience to other users of the road, it shall not be necessary for the motor vehicle to display any lights". 16. As per this sub-rule, it is mandatory on the part of vehicle which is parked in the night to put on parking lights or some indicator to show that vehicle is parked. There is no such evidence available on record that in the offending lorry any lights were put on or in blinkers were there to show that the vehicle was parked. 17. Thus the irresistible conclusion that we can draw is that driver of the lorry has also equally contributed in the said accident. It that be so, then the vehicle being insured at the relevant point of time with the appellant, obviously the Tribunal committed no error in fastening the liability of it to the extent of 50%. 18. In the light of foregoing discussion, we are of the considered opinion that there is no merit or substance in the appeal. It is accordingly dismissed. Appellant to bear the cost of litigation throughout. Counsels fee Rs.3,000/- if certified. The amount deposited by the appellant would stand transferred to the concerned Tribunal.