United India Insurance Company Limited vs Smt. Balbeer Kaur and Chandro Devi and Others

K. Kannan, J.—Both the cases arise out of the same accident when there were two persons travelling in a car that died on account of collision of the car with the insurer''s truck.

The appellant-Insurance Company, which had the benefit of defence under all grounds, challenges the award on the issue of negligence. It is contended with reference to the sketch drawn by the police and filed as an exhibit before the Tribunal that the deceased, who was a passenger in a car, insured with the Oriental Insurance Company, dashed against the insurer''s truck from behind. The sketch would show that the place of accident was the left side of the road and the driver of the car, if he had managed a safe distance, a collision would not have taken place at all.

The Tribunal while rejecting the contention of the insurer would state that the driver of the truck did not dare to get into the witness-box and, therefore, the entire responsibility for the accident must be placed only on the truck driver. The Learned Counsel appearing for the insurer would find fault with such a reasoning by contending that even if the driver did not get into the witness-box, the manner in which the accident was narrated to have taken place that by the sudden brakes applied by the truck, the driver of the car coming behind must have still maintained sufficient distance and it would be not a justification for a vehicle following a truck to contend that only by the application of brakes by the vehicle going in front, it could dash against the rear side of the vehicle. It has been seen that a truck which carries load cannot be expected to know what is following the vehicle. It is also pointed out by the counsel appearing for the insurer that the Regulation 23 of the Road Regulations enjoins that there ought to be sufficient distance for a vehicle following a goods carriage. This is only to ensure that even if a vehicle going in front has perforce to stop the vehicle suddenly, it cannot mind the possibility of a collision from a vehicle following it, unless the driver of the vehicle following it himself observes sufficient care and had maintained a distance to avoid collision. In any event, I cannot accept the reasoning for a vehicle going in front applying brakes, a vehicle following it could dash against it without inviting a finding that he had contributed to the accident in some way. In the manner in which the accident is narrated and by taking due consideration of the fact that the driver of the truck did not examine himself, I would reduce the liability to what would be otherwise in equal proportion to 75:25. I would accordingly apportion the liability of 75% to the truck owner and the insurer-appellant and place 25% liability to the driver of the car. Consequently, in terms of the award determining a compensation of Rs. 1,54,000/- in FAO No. 5211 of 2004 (MACT case No. 140 of 2001) and Rs. 2,72,000/- in FAO No. 5210 of 2004 (MACT case No. 141 of 2001), I would apportioned 75% of the same to be borne by the Insurance Company-appellant and 25% to be borne by the Oriental Insurance Company-insurer of the car. The awards of the Tribunal are modified for providing for the apportionment of liability in the manner referred to above.

The appeals are allowed to the above extent.