IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 260 of 2003()
1. NATIONAL INSURANCE COMPANY LTD.,
... Petitioner
Vs
1. K.V.USHA, W/O. LATE A.C.VASUDEVAN,
... Respondent
2. SHOBA D/O. LATE A.C.VASUDEVAN,
3. SATHEESH S/O. LATE A.C.VASUDEVAN,
4. MANJULA D/O. LATE VASUDEVAN,
5. VELLACHI
6. GURBUX SING S/O. SH.JALLOR SING,
7. M/S.GATI DESK TO DESK CARGO, 1TH MILE,
8. THE NEW INDIA ASSURANCE COMPANY LTD.,
For Petitioner :SRI.P.R.RAMACHANDRA MENON
For Respondent :SRI.V.CHITAMBARESH
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :28/10/2008
O R D E R
J.B.KOSHY & K.P.BALACHANDRAN, JJ.
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M.A.C.A.NO.260 OF 2003 ()
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Dated this the 28th day of October, 2008
J U D G M E N T
KOSHY,J.
This appeal is filed by the Insurance company
challenging the finding of negligence of the vehicle insured by
it. The husband of the 1st respondent, an ex-service man, who
was working as a driver in a van sustained fatal injuries in the
motor vehicle accident on 18.1.1996. The van driven by
the injured hit the back of a lorry insured by the appellant
Insurance company. It is the contention of the claimants that
the accident occurred solely because of the negligence of the
lorry which was parked in the National Highway without any
parking light. Nobody is expected to park a vehicle at a place
which is not meant for parking. Accident occurred at
2.45 a.m. and therefore, according to the claimants, accident
occurred only due to parking of the lorry in the non-parking
MACA.260/03 2
area without parking light. It is the contention of the
appellant that the vehicle was parked on the side of the road.
But considering the scene mahazar and other evidence, it was
found that the lorry was parked in the National Highway.
There was also fog. However, it was also found that the van
driver was also negligent. In the absence of clear evidence,
alleged negligence was apportioned equally between the van
driver and the driver of the lorry which parked the lorry
without observing the Motor Vehicles Rules, and therefore,
only 50% of the compensation calculated was awarded. We
are of the view that no interference is required in the award,
and hence, this appeal is dismissed.
J.B.KOSHY, JUDGE
K.P.BALACHANDRAN, JUDGE
prp
J.B.KOSHY & K.P.BALACHANDRAN, JJ.
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M.A.C.A.NO.260 OF 2003 ()
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J U D G M E N T
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28th October, 2008