UNITED INDIA INSURANCE CO. LTD. v. B IBI NAFEZA W/C) MOHAMMED ZAPAR

(By Sri. C V ANGADI, ADV) 1/) 1, B IBI NAFEZA W/C) MOHAMMED ZAPAR, Age: 53 Y.EARS, P/O MADINA COLONY, BHATKAL, NK. DIST. 2

4. YASMIN BANU W/O MOHAMMED MAHAZAR, Age: 29 YEARS, RIO. HANIFA ABAD, HEBLE, BHATKAL, N.K. DIST. S RAHAMATHULLA 5/0 HUSSAIN PEERA HIGHWAYS, Age: 40 YEARS, MIS M.J.ENGINEERING WORKS, N.H.13, KOPPAL MUNIRABAD, KOPPAL DIST., KARNATAKA. ThE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, ROSY TOWERS, 2” FLOOR, NO.7, NUNGAMBAKAK HIGH ROAD, CHENNAI-600034, REP. BY ITS BRANCH MANAGER. RESPONDENTS (By Sri. B.C.SEETHARAMA RAO FOR R4, R1& R2 SD) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 04/2/2009 PASSED IN MVC NO.126/07 ON THE FILE OF ThE ADDITIONAL MACT, HONAVAR, AWARDING A COMPENSATION OF RS.88,700/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT. IN MFA NO.2162712009: AND:

1. SMT. SHAQUFTA BANU W/O SAYYED ABDUL AZEEN AGE: 29 YEARS, R/O BAITHULALIM, H.NO.602, NEAR FLOOR MILL, BUNDER ROAD, MAGADUM COLONY, BHATKAL, N.K DIST. t.

6. SAYYED MOHAMMED SHAMISH S/O SAYYED ABDUL AZEEM, AGE: 4 YEARS. SINCE MINOR R1’B. GUARDIANiMOTHER SHAGUFTA BAN U, R/O BAITHULALIM HNO6O2, i\ER FLOOR MILL BL DER RuD MAGADUM COLONY, BHATKAL, N.K DIST. BIBI RUKHIA KOLA W/O SAYYED SHAMSHUDDIN PIRZADE, AGE: 58 YEARS. R/O SAYYED HASHI MANZIL, UMMER STREET. 3RD CROSS,, MADINA COLONY, BHATKAL, UJK DIST. YASMIN BANU W/O MOHAMMED MAHAZAR, AGE: 29 YEARS, R/O SUHA MANZIL HANIFA ABAD. HEBLE, BHATKAL, N.E DIST. S RAHAMATHULLA S/0 HUSSAIN PEERA HIGHWAYS AGE: 43 YEARS, M/S M.J.ENGINERING WORKS. NH. 14, KOPPAL, MINIRABAD, KOPPAL DIST. THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFIUL ROSY TQ\p 2D FLOOR, NO.7, N’UNGAMBAi.K. HIGH ROAD, CHENNAIAOOO34, REP BY ITS BRANCH MANAGER. (By Sri. P.G.CH.IKKANARAGUN D FOR R U (R.2 MINOR R/EY RU) S RI.. E. SEETHARAM RA.’ FOR R.6, R..3R.5 SERVED) 4 THIS MFA IS FILED U S 17S(i OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 04 22009 PASSED IN MVC NOA4/06 ON THE FILE OF THE: ADDITIONAL MACT. AT HONA VAR. AWARDING A COMPENSATION OF RS. 1 180,000V WITH INTEREST d, 6% P.A, FROM THE DATE OF PETITION TILL THE DATE OF I)EPOS1T. O.216292OQ9 AND

1. SHRI SHANAWAZ MOHAMMED S/O MOHAMMED ZAFAR Age: 33 YEARS, R/O MADINA COLONY, BHATKAL, N.E. DIST,

2. 4:

4. YASMIN BANU \VO MOHAMMED MAHAZAR. AGE: 29 YEARS. R/O HANIFA ABAD, HEBLE, BHATKAL, N.E. DIST, S RAHAMATHULLA 5/0 HUSSAIN PEERA HIGHWAYS, Age: 40 YEARS. M/ S MJ,ENG1NEERING WORKS. N.H. 13, KOPPAL MUNIRABAD, KOPPAL. THE ORIENTAL INSURANCE CO LTD BRANCH OFFICE, F.OSY TOWERS, 2 FLOOR, NO.7, NUNGAMBAKAIc HIGH ROAD , CHE.NNAI, R1’ B. ITS BRANCH MANAGER (Br Sri. CV ANGAD FOR R. I. ‘EL N THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND A\VARD DATED: 4/2/2009 PASSED IN MVC NOl27/07 ON THE FILE OF THE ADDITiONAL MACT, HONAVAR, AWARDING A COMPENSATION OF RS96,4O0/- WITH INTEREST % 6% PA. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT. THESE APPEALS COMING ON FOR ORDERS THIS DAY, KLMANJUNATH d, DELIVERED THE FOLLOWING: JUDGEMENT Though the matter is listed for orders, by consent these appeals are heard together

2. These 3 appeaIs are filed by the United India In surance Company limited, challenging the liability saddle on it. to a••n extent of 70% in. respect of vehicle .insured by it in MVC NoA4/2006, 126/21007 and 127/2007 passed. Lv the Additional. MACT, Honna.var dated 4/2/2009. In a road traffic acciden.t occurred on 27 / I / 2006 at ab’o ut 4. 3oaxn on account ol. rash and neal igent dri.ving of the dr.iver of Quails bearing registration No. KAN-7/M2277 clashed against the stationed lorre between Bhatka.UHu. b/i near Koiiere. driver of the Qualis as well as one Sayyed Abdul Azeem died 6 in the accident and other two inmates of the Qualis i.e. Bibi Nafiza and Shanavaz Mohammadgupta injured. Therefore, lodged 3 claim petitions claiming compensation against the owner and the Insurance Company of the Qualis vehicle and also against the owner of the lorry and the Insurance Company of the lorry which had insured the vehicle. The Tribunal after considering the evidence let in by the parties held that the accident occurred due to rash and negligent driving of the Qualis vehicle and further it also held that since the lorry was parked in the middle of the road without switching on the parking light, 30% of the compensation awarded has been apportioned on the owner of the lorry and it is Insurance Company and 70% of the compensation is ordered to be paid by the appellant Insurance Company, which had insured Qualis van.

3. Challenging the legality and correcmess of the findings the Tribunal apportionment compensation at the ratio of 70:30, the appellant- Insurance Company has filed, these appeals. The claimants have also filed separate MFA for enhancement and those appeals would be heard by us separately since the appellant, is not challenged the quantum of compensation awarded by the Tribunal, 4, We have heard the learned counsel for the parties.

5. Mr. CVAngadi learned counsel for the appellant contends that the Tribunal had committed an error in fixing the liability of the appellant Insurance Company to an extent of 70% when there is a failure on the part of the driver of the lorry in not switching on the parking light and not parked the vehicle on the Kachcha portion of the road and on account of the lorry stationed on the middle portion of the road entire negligence ought to have been fixed on the driver of the lorry. In the circumstances, he request the Court to allow these appeals and set aside the liability saddled on the appellant Insurance Company.

6. Per contra. l.earnecl counsel the respondent contend that considering Ex,P2 the spot Mahazar it is clear that the width of the aspaited no rtion of road was measure ‘2 1 fee.t and thereafter on either .sicle of thern road. there is Kachha portion i.ouzhiv incas res hn5 5 to ST. Therefore. 8 there was no chance for the driver of the lorry to park the vehicle exclusively on Kachha portion leaving aspalted portion for the free moment of the vehicles. Therefore, they request the Court to dismiss the appeal.

7. Having heard the counsel for the parties the only point to be considered by us whether the liability saddled on the appellant by the Tribunal requires to be modified or not? 8. Liability of the appellant company is not in dispute. The dispute is in regard to apportionment of compensation between two vehicles and its Insurance Company. It is not in dispute that the width of the road is 24ft. and lorry stationed on the left side of the road on account of tire of the lorry was punctured. It was parked in such a way that left side tyres of the lorry were on the Kachcha portion and right side tyre on the aspalted portion because right side tyre was punctured. Even to change the punctured tire in respect of heavy goods vehicle, the lorry could not have been taken to extreme left side and stationed on the Kachcha road. Considering the geography of the area the driver will not park the vehicle on the Kachcha portion considering the nature of soil in the locality. As stated supra when the Kachha portion was not sufficient, park.ing the entire lorry in that area naturally right side of the lorry shall be on the aspaited portion We cannot find fault with the parking of the lorry on the aspalted portion. If the driver of the lorry had started on the parking light even 30% could not have been a aportioned against the lorry driver. Only for non using of the parking lights the Tribunal has fixed the liability on the lorry and its Insurance Company. In the circumstances, this Court cannot set aside the findings of the Tribunal and we do not see an merits in these three appeals. Accordingly, these 3 appeals are dismissed. Amount in deposit is ordered to be transmitted to the Tribunal. Sd1- u ..1 f. - -