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2018 DIGILAW 1165 (GAU)

Alim N. Sangma v. Sanjay Thakur

2018-08-07

RUMI KUMARI PHUKAN

body2018
JUDGMENT : Rumi Kumari Phukan. J. Heard Mr. R. Boruah, the learned counsel appearing for the appellants. Also heard Mr. A. Talukar, learned counsel appearing for the respondent No.3 (the United India Insurance Co. Ltd). 2. This Appeal is preferred against the judgment and award dated 31.5.2016, passed by the learned Member, Motor Accident Claims Tribunal No.2, Kamrup (M) at Guwahati, in the MAC Case No.1704/2013. 3. Briefly stated, the case of the claimants'/appellants' is that on 3.12.2012, at 9 P.M. at Suluniapara on National Highway 37, the son of the appellants Charnath G. Marak, while coming with his vehicle No. ML-08-C-6714 (Mahindra Scorpio) from Meghalaya to Guwahati, the said vehicle met with an accident along with the vehicle No. AS-01-BC-3380 (Truck), as a result of which said Charnath G. Marak died on the spot. According to the claimants, the accident occurred due to wrong parking of the said truck in a dangerous and negligent manner without any light for signal and to this effect, they have also filed an FIR which has been registered as Boko P.S. Case No. 9/2013, registered under Sections 283/338/304(A)/427 IPC. 4. The deceased was a businessman having income of Rs. 7 lakh per month, as he runs a wine shop as well as owner of 11 numbers of truck. The parents of the said deceased preferred a claim petition before the Tribunal praying for compensation of Rs. 55 lakh, for the death of their son arising out of use of motor vehicle. The said case was registered by the Tribunal as MAC Case No. 1704/2013. 5. In response to the notice, the driver of the offending truck as well as the insurer of the aforesaid vehicle contested the case by filing written statement whereas the owner of the truck choose not to contest the case. 6. The driver of the offending truck denies the allegation that there was illegal parking on his part and so he is not liable for the occurrence as alleged. The insurer of the said vehicle also denied any liability on their part unless the case is proved in strict manner and their liability was subject to compliance of policy condition. 7. The driver of the offending truck denies the allegation that there was illegal parking on his part and so he is not liable for the occurrence as alleged. The insurer of the said vehicle also denied any liability on their part unless the case is proved in strict manner and their liability was subject to compliance of policy condition. 7. In course of proceeding, the claimants' side examined five witnesses to prove the incident as well as the age and income of the deceased person, who were cross-examined by the learned counsel for and on behalf of the Insurance Company. At the conclusion of the proceeding, the learned Tribunal came to the findings that the claimants have suppressed the matter that in fact the deceased was driving the vehicle on the fateful day and the deceased himself was guilty of rush and negligent driving and the driver of the offending truck cannot be held guilty of negligent parking of the said truck, which was parked on the left side of the road. 8. Elaborating the evidence on record as well as the documents that has been filed by the claimants before the learned Tribunal, it has been contended by the learned counsel for the appellants that there was no suppression as regards to the fact that the deceased himself drove the vehicle on the day of occurrence. As because, the PW.2 Gillak G. Marak, who was the sole eye witness to the occurrence has specifically stated before the Tribunal in his evidence that the deceased drove the vehicle on the day of occurrence and the vehicle dashed against the stationary vehicle/truck, that was parked by the side of the road without their being any signal or parking light on that foggy night. 9. On the other hand, the findings of the Tribunal has also been assailed on the ground that while arriving at the decision, the Tribunal has measurably failed to appreciate the vital allegation of the claimants' side that the offending truck was not parked in proper manner as it was without any signal or parking light and has erroneously arrived at the finding that it was the deceased himself who was guilty of rush and negligent driving. On these two counts, the matter has been challenged before this Court. 10. On these two counts, the matter has been challenged before this Court. 10. The learned counsel for the Insurance Company contended that there was no illegality in the aforesaid order while dismissing the claim petition, as the evidence of PW.2 cannot be acted upon that he actually saw the said incident, sitting at the rear seat of the vehicle. It has also been pointed out by the respondent that the vehicle was parked on the left side of the road and as such there was no illegality on the part of the offending vehicle/truck while parking and it is for the fault of the deceased himself, the occurrence took place. 11. I have given due consideration to the submissions made by the learned counsel for both the parties and gone through the evidence on record. 12. Now the fact to be noted that it is the specific case that the incident happened due to the wrong parking of the truck, which has no signal and parking light in such foggy night for which the incident took place. The driver of the truck although filed written statement but did not come forward to challenge the evidence of the claimants' to substantiate his plea that he was not at all fault for the said incident. So the driver of the offending truck is the best person to challenge the aforesaid deliberation which was not done in the present case. However, the said function is now tried to discharge by the Insurance Company, who is not an eye witness to the occurrence. Suggestion was given by the Insurance Company to the eye witness Gillak G. Marak (PW.2) that the vehicle was parked on the left side of the road properly, which however denied by the said witness. But no any specific suggestion was given to this witness that the vehicle was also lighting the parking light or with proper signal, while parking so. Such a stand taken by the Insurance Company is not sufficient to dispel the specific evidence of the claimants' side. By sitting on the rear seat, one can witness such serious incident, which happened ahead of the vehicle. In view of that matter, the evidence of the PW.2 perhaps cannot be discarded. 13. Such a stand taken by the Insurance Company is not sufficient to dispel the specific evidence of the claimants' side. By sitting on the rear seat, one can witness such serious incident, which happened ahead of the vehicle. In view of that matter, the evidence of the PW.2 perhaps cannot be discarded. 13. The learned Tribunal was of the view that as the vehicle was parked on the left side of the road, so the driver of the truck is not found negligent while parking the said vehicle. But the things remains that parking a vehicle on the left side of a road is not enough in night hours without any proper signals, that too in a foggy night. 14. Section 122 of the Motor Vehicle Act, 1988 provides as below: "122. Leaving vehicle in dangerous position - No person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers." 15. The above provision itself indicates that certain precaution is to be taken by a driver while parking a vehicle at a public place. What should be the proper precaution to be followed is to use parking light and give proper signals about stationing of the vehicle, so that other can notice such vehicle on the side of the road. Such a precaution is required to be adopted while particularly it was a foggy area in the month of December. Obviously it is a no case of the driver of the said vehicle that he has parked the vehicle in the manner as has been indicated above. Such lack of due care and precaution on the part of the driver of the truck may speak about the negligence on his part. In the parlance of law, lack of proper care and attention amounts to negligence. 16. The deceased person who was driving the Scorpio vehicle in such foggy night, had he seen such parking light ahead, would have also taken proper precaution while driving his vehicle but same could not be done because of such conduct of the aforesaid truck. 17. In the parlance of law, lack of proper care and attention amounts to negligence. 16. The deceased person who was driving the Scorpio vehicle in such foggy night, had he seen such parking light ahead, would have also taken proper precaution while driving his vehicle but same could not be done because of such conduct of the aforesaid truck. 17. There is lot of scope on the part of the learned Tribunal to appreciate the matter in proper perspective of law as well as fact, as indicated above. The grant of compensation is under social piece of legislation and the parents of the deceased has come forward with a prayer for compensation for the death of their son in a motor vehicle accident and in such backdrop, the proper appreciation of all material on record is paramount duty on the part of the Tribunal. 18. Taking into note of all above, the impugned award so passed by the learned Member, Motor Accident Claims Tribunal No.2, Kamrup (M) at Guwahati, in the MAC Case No. 1704/2013, dated 31.5.2016, is hereby quashed and set aside. The matter is remanded back to the learned Tribunal to decide afresh, on the basis of the evidence on record and if necessary, by giving opportunity to both the parties to adduce evidence on their part and to arrive at a just decision. Both the parties are hereby directed to appear before the learned Tribunal on 7.9.2018. 19. The appeal stands disposed of with above direction. Return the LCR immediately.