JUDGMENT S.S. Kulshrestha, J.
1. Heard learned counsel for the parties and also perused the materials on record.
2. This appeal is brought against the judgment and orders dated 3.1.2006 passed by the Motor Accidents Claims Tribunal/ Additional District Judge, Auraiya (for short, 'the Tribunal') in M.A.C.T. No. 86 of 2000 whereby awarding Rs. 62,000 along with 6 per cent interest per annum from the date of filing the claim petition. It is said that the trial court has not properly appreciated the evidence on record. The accident was caused due to rash and negligent driving of Fiat car No. UHH 2100 (Sic. by the deceased), who was driving the car himself. He collided with the parked truck No. UPG 2108 and for that no liability can be fastened on the insurance company. Moreover, there was contributory negligence on the part of the driver of Fiat car and the amount of compensation could be apportioned between the owner of the truck No. UPG 2108 and the owner of Fiat car. At the most the liability of the insurance company may be only 50 per cent to the extent for which the liability of the truck was construed.
3. It has further been contended that the driver of Fiat car was himself so rashly driving that when, as per the statement of the witnesses, a speedy car from the front side gave flash light, the driver of Fiat car could not notice the parked truck and so for that lapse on the part of the driver of Fiat car, the insurance company cannot be held liable. In order to facilitate the disposal of the case a brief resume of the facts may be made.
4. Mohan Lal, who is herein claimant-respondent No. 1, was returning in a Fiat car No. UHH 2100 from Bharthana to Auraiya on 14.2.1994 at 11.30 p.m. Fiat car was driven by Krishna Kant Pandey in a controlled speed but when that Fiat car reached near Madhupur Raitianpur it collided with truck No. UPG 2108, which was parked in the middle of the road without any indicator or any of the signs displaying the parking of the truck because of some operational fault. The parked truck could not be noticed and Fiat car met with an accident and in that accident Krishna Kant Pandey, who was driving Fiat car died at the spot and the claimant sustained several grievous injuries and also sustained fracture of his leg. The claimant was shifted to P.H.C. Auraiya and ultimately he got treatment through private doctors. As his knee was also operated he sustained permanent deformity of his left leg and had to suffer pain and agony for a long period. He was working at the relevant time as a halwai and was earning Rs. 4,000 per month. He had to spend a huge sum on his treatment. Amount of Rs. 10,60,000 towards compensation including the amount spent for his treatment, pain and suffering had been claimed. The details of which have already been referred in the judgment of the Tribunal. This appeal was resisted by learned counsel for the insurance company contending that there was contributory negligence on the part of driver of Fiat car as he was not having proper licence and registration and for that no liability can be fastened against the insurance company. More so there is not sufficient evidence to show negligence on the part of the truck driver. Learned trial court on the basis of the evidence construed that the accident had taken place because of the wrong parking of the truck and Fiat car was being driven by Krishna Kant Pandey at a controlled speed. He was not driving it rashly and negligently. Negligence was on the part of the truck driver for parking it at the centre of the road without any indicator. The insurance company was held to be liable on the basis of the medical bills and voucher submitted for the total amount of Rs. 50,808. Compensation towards medical treatment to the tune of Rs. 60,000 and Rs. 20,000 towards pain and suffering of the claimant was awarded by the learned Tribunal.
5. It is said that due to negligent driving on the part of Fiat car, claimant sustained injuries and the driver died on the spot. There is no dispute that the road where the accident had taken place is a busy road and if any of the vehicles was parked at night in the centre of the road without any indicator, no rashness can be construed to the driver of the vehicle coming from the other side. It cannot be presumed by any driver of a vehicle that somebody has created obstruction by parking the vehicle in the middle of a road and that too without any indicator or warning or sign. More so the reason has also been given by the claimant and the other witnesses that from the other side a speeding car gave dipper and flash which also affected the visibility of the driver of Fiat car and due to the truck standing in the middle of the road without any indicator or sign the car collided with it. Sufficient causes have been given to show that the driver of Fiat car was not driving rashly or negligently. It has next been contended by learned counsel for the appellant that because of rash and negligent driving the driver of Fiat car could not foresee the speeding car coming from the other side and collided with the truck, resulting in his death. Reliance has been placed on the case of Karnataka State Road Trans. Corporation v. K.V. Sakeena , wherein it was observed that the bus driver should have taken proper care by keeping his bus away from the trailer. The observations made in the above case by the Apex Court are in different context. In that case the road upon which the accident had taken place was 24 ft wide and on the other side the trailer was 12 ft and the dumper (weighing 25 tonnes) upon it was 1 1/2 ft wide on either side and protrusion was not marked out by red lights or reflectors. The bus was moving at a fast speed and it travelled 150 ft, after the collision and turned turtle. The bus which was coming from a different direction in speed ought to have noticed such bulk upon the trailer and kept his vehicle away.
Here the position was altogether different. On the fateful night the truck was parked in the middle of the road and it cannot be presumed by any of the drivers that some obstruction was there in the middle of the road and more so when a vehicle was coming from a different direction and it flashed the light the driver of Fiat car had no way but to give him side and by doing so Fiat car came in the mid of the road where the truck was parked without any indicator or sign and collided with it. The case of Indrani Raja Durai v. Madras Motor & Genl. Ins. Co. , is also not applicable in the present circumstances. There appears no justification for making the apportion of the amount between the owner of both the vehicles.
6. It has further been urged by the learned counsel for the appellant that even if the evidence adduced by the parties is accepted, the compensation ought to have been awarded to the tune of Rs. 50,808 in accordance to the bills issued by the Ashrey Nursing Home & Diagnostic Centre Pvt. Ltd., Auraiya but the learned Tribunal enhanced the amount without giving any cogent reason for the same and to that extent the award may be modified. Applicant is entitled for the amount Rs. 50,808 towards reimbursement of the medical bills and Rs. 2,000 for pain and suffering of the claimant. In the result total amount of Rs. 52,808 is payable to him. This appeal is disposed of accordingly.