Delhi High Court
National Insurance Co. Ltd. vs Pushpa & Ors. on 2 June, 2010
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Mac. App. No.253 of 2010 & C.M. Appl. Nos.7287-7289 of 2010
% 02.06.2010
NATIONAL INSURANCE CO. LTD. ...... Appellant
Through: Mr. Kamal Deep, Advocate.
Versus
PUSHPA & ORS. ......Respondents
Reserved on: 27th April, 2010
Pronounced on: 2nd June, 2010
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
1. By this appeal, the appellant has assailed order dated 19th January, 2010 whereby
the learned Tribunal awarded a compensation of Rs.13,56,000/- to the dependents of the
deceased in a petition under Section 166/140 of Motor Vehicles Act.
2. The award has been assailed on the ground that the Tribunal erred in taking future
prospects of the deceased and the Tribunal failed to appreciate that it was a case of
composite negligence and the liability of the insurance company, therefore should have
been 50 per cent of the award. Along with appeal, an application under Order 41 Rule 27
CPC, being C.M. Appl. No.7289 of 2010 is made to permit the insurance company to
place on record additional evidence to show that the deceased was member of ESIC and
had received claim from ESIC.
3. The appellant had sufficient opportunity before the Tribunal to lead evidence.
What made the appellant not to lead evidence in respect of deceased being member of
ESIC before the Tribunal? Perusal of award shows that this stand was not even taken
before the Tribunal. Under Order 41 Rule 27 CPC, the appeal court can permit additional
evidence to be adduced only where despite due diligence, the appellant could not come to
know of the evidence, which came to its knowledge later on, and that the appellant had
made all efforts to produce evidence. It is not the case of the appellant. I, therefore,
consider that this application under Order 41 Rule 27 was not maintainable and is
dismissed as such.
4. The challenge to the award by insurance company on the ground of negligence of
driver not being there or composite negligence is not maintainable in view of Section 149
(2) of the Motor Vehicles Act, 1988 permitting insurance company to defend the action
only on the ground of breach of conditions of policy (National Insurance Company
Limited, Chandigarh vs. Nicolletta Rohtagi & Ors.; AIR 2002 SC 3350).
5. Perusal of the award shows that the learned Tribunal calculated compensation
strictly as per case law laid down by the Supreme Court in Sarla Varma & Ors. vs. Delhi
Transport Corporation & Anr.; (2009) 6 SCC 121. The income of the deceased was
proved by calling witness from the employer. Future prospects were added as per the
Supreme Court's judgment in Sarla Varma's case (supra). Multiplier and deduction for
personal expenses were also made as per Sarla Varma's case (supra). The calculation of
compensation has been done as per parameters laid down by the Supreme Court.
6. I consider it was not a fit case to admit the appeal. The appeal is dismissed in
limine.
SHIV NARAYAN DHINGRA J.
JUNE 02, 2010
'AA'
