M.M. Punchhi, J. - (1.) A taxi ran into a stationary truck on National Highway No. 1 between Delhi and Palwal around 3 a.m. on 12th May, 1979. One of the inmates of the taxi, Sat Pal Gulati, died on account of the accident. His widow Krishna Gulati and his two minor daughters, Mona and Sona, preferred a claim to the tune of Rs. 1,50,000/ - before the Motor Accidents Claims Tribunal, Gurgaon. The Tribunal held the stationary truck to be responsible for the accident. The Tribunal further held that the annual dependency of the claimants over the deceased was to the tune of Rs. 4,840/ - and given a multiplier of 13, were held entitled to a rounded figure of Rs. 60,000/ -. Additionally, interest at the rate of 6 per cent per annum was allowed from the date of the application till recovery of the awarded amount. The liability was apportioned to the tune of Rs. 50,000/ - on the National Insurance Company, the insurer of the truck and remaining Rs. 10,000/ - was put on the shoulders of the truck driver/owner. FAX) Nos. 36 and 50 of 1982 have been filed by the aforesaid insurance company and the truck driver/owner and Cross -objection Nos. 16 -CII and 17 -CII of 1982 have been filed by the claimants for enhancement of compensation.
(2.) SOME of the undisputed facts are that taxi No. DLY 750 driven by Daya Nand Respondent was returning from Agra to Delhi on the night intervening 11/12th May, 1979. The occupants of the hind seat of the taxi were Pritam Singh PW -4 and Radhey Mohan Gupta PW -5. On the front seat was the driver on the wheel and besides him was Sat Pal Gulati deceased. At about 11 miles from Palwal, the car, Ambassador by make, was suddenly confronted with a parked truck and in order to save a collision the driver swerved it towards his right. Yet the right hind portion of the truck hit the front left portion of the car which resulted in the instantaneous death of Sat Pal Gulati. According to Daya Nand driver RW -2 as also Pritam Singh PW -4 and Radhey Mohan Gupta PW -5, the truck was standing on the metalled portion of the road but on the left side. All these were unanimous that the driver of the car could only spot the truck in that split of the moment when he had to swerve towards the right to avoid a collision, if possible. The case of the truck driver, on the other hand, as put in his written statement, is that the truck had been parked on the road side towards left, but in his statement as RW -2 he clarified his stance by asserting that two wheels of the truck were on the metalled portion and the other two wheels were on the unmetalled portion of the road. It stands undisputed before me that the truck driver had parked his truck in order to ease himself and besides this there was no other compulsive need which could have involved any longer time for him to keep it stationary. It equally stands undisputed before me that the learned Tribunal was right in concluding that the truck driver, after the accident, had driven his truck away before the arrival of the police. Additionally the existence of photographs Exhs. P -2 and P -3, as produced by the claimants, is not disputed. It is on these circumstances and material that liability of the truck needs re -determination in the context of the appeal and the Cross -objections. Picking up thread from the afore -narrated facts, it has also come to light in the evidence of Daya Nand RW -2 that before the time of the accident there were a number of oncoming vehicles which were glaring their lights and in the glare he could not perceive the parked truck till the necessity arose to swerve the car towards its right. Accepting that statement as correct there enters an inherent negligence in his stance. Those who drive vehicles at night know well that if the oncoming vehicles have light on without the use of dippers it is safe and prudent on one's part to put on the dipper to obviate the possibility of a collision with a stationary vehicle or an obstruction. It is not the claim of Daya Nand RW -2 or for that matter of Pritam Singh PW -4 and Radhey Mohan Gupta PW -5, that the driver (Daya Nand) used the dipper in order to increase perception and to minimise the ill -effect of the glare of the oncoming vehicles. Had he done so, he would have obviously spotted the truck causing obstruction on the road and steered a passage to cross by in a cautious way. To this extent my view is that the driver of the taxi was negligent. He did not exercise the necessary caution in using his dipper, keeping apart the negligence of the truck.
(3.) NOW on the question of negligence of the truck, Section 81 of the Motor Vehicles Act is a clear pointer, which reads: 81. Leaving vehicle in dangerous position. - -No person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to remain at rest on any road in such a position or in such a condition or in such circumstances as to cause or be likely to cause danger, obstruction or undue inconvenience to other users of the road. It is settled by the Supreme Court in Rakesh Kaushik v. Delhi Administration : AIR 1985 SC 1050, that titles to section are a legislative exercise and by no means words of no significance. The key to the section is - -'Leaving vehicle in dangerous position'. In the context of the present set of facts, hint of which has been made earlier, there was no other need with the truck driver to stop the truck except to ease himself, an act which could not be accomplished in no time. A driver, more so a truck driver, whose life is wedded to the wheels, knows the requirement of the law and the dictates of his professional prudence. According to his statement, he had parked the truck 20/30 minutes before the accident. Though his claim is that the parking lights were on but had they been on, there was no likelihood of the accident taking place in the manner in which it has happened. Secondly, the accident by itself could not have switched off the parking lights and he could have waited for the police to arrive to tell them that the accident had taken place despite the parking lights being on. The very fact that he vanished from the scene shows that his mind was guilty. He was even prosecuted and found guilty by the criminal court. There is no support whatsoever from any quarter to his version that the parking lights of the truck were on or there were* any reflectors to otherwise caution the ill -fated taxi driver. Thus, it is crystal clear that the parked truck could not be seen by the taxi driver as the truck driver had not taken any caution in that regard to make his parked vehicle visible or discernible. As said earlier, that by itself did not absolve the taxi driver to keep a vigilani eye for any obstruction in his front.;