I am unable to understand findings given by the Tribunal regarding contributory negligence of the deceased when it has come on record that, no tail lamps or the indicators of offending tempo were put on or no proper precautions were taken by the driver of the offending tempo, to give signal to the other vehicles to show that, the offending tempo was stationed on the road.
{Para 9}
10. After the incident of accident Mohini Salunke, CW-1, widow of deceased and CW-3 Govind Suryawanshi have seen the place of accident while going to Civil Hospital, Latur where deceased was admitted after accident. They noticed that, offending tempo was stationed in the middle of road and its tail lamp or indicators were not on. It has come in the evidence of CW-4 Laxman Jadhav who runs Dhabha by name ‘Kaushik’ near the place of accident, that after hearing sound he went to the accident spot. He found that deceased was lying on the road and stationary offending tempo. He further stated that, indicators or tail lamp of the offending tempo were not on. It was stationed in the middle of the road. From the evidence of three witnesses it reveals that, offending tempo was stationed in the middle of road. No tail lamp or indicators of offending tempo were on.
11. It is signifcant to note that, driver of the offending tempo has not examined any witness to prove that, he had put on the tail lamp or indicators of the offending tempo. Latur Ambejogai road is highway. The accident is happened at 10:00 p.m. when offending tempo was stationed in middle of the road. It was duty of the driver of the offending tempo to put indicators or parking light of the offending tempo in on condition, so other vehicles could know about stationed tempo but it has come on record that, no such precautions were taken by driver of the offending tempo. When any vehicle stationed on the road at night time, as per Rule 109 of the Central Motor Vehicles rules, 1989 proper precautions are necessary to be taken. It reads thus:
[109. Parking light :
[[Every construction equipment vehicle, combine harvester and motor vehicle] and every motor vehicle other than motor cycles and three wheeled invalid carriages shall be provided with one white or amber parking light on each side in the front. In addition to the front lights, two red parking lights one on each side in the rear shall be provided. The front and rear parking lights shall remain lit even when the vehicle is kept stationary on the road:
Provided that these rear lamps can be the same as the rear lamps referred to in rule 105 sub-rule (2):
[Provided also that construction equipment vehicles [and combined harvesters], which are installed with food light lamps or sport lights at the front, rear or side of the vehicle for their off–highway or construction operations, shall have separate control for such lamps or lights and these shall be permanently switched off when the vehicle is travelling on the road.]
This rule states that, front and rear parking lights shall remain lit when the vehicle is kept stationary on the road.
12. It has come on record that, no such parking lights were put on the offending tempo, so liability of contributory accident cannot be fastened on the deceased by holding that, he should have seen the stationed tempo under the headlight of motorcycle. When there is specifc rule in respect of taking precautions by stationary vehicle, if such precautions are not taken by the driver/owner of stationary vehicle then liability cannot be shifted on motorcycle rider. Hence, I am setting aside the observations of the Tribunal that, there was 50% contributory negligence of the deceased in the said accident and I am holding that, driver of the offending tempo is sole responsible for the occurred accident.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
FIRST APPEAL NO. 569 OF 2022;
Mohini Mohanrao Salunke Vs Ramdas Hanumant Jadhav
Coram: S.G. DIGE, J.
Dated: 18th October, 2022
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