Delhi High Court
The New India Assurance Co. Ltd. vs Beena Devi & Ors. on 21 July, 2017
$~44
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 21st July, 2017
+ MAC APPEAL No.628/2017
THE NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Ms. Awantika Manohar, Adv.
versus
BEENA DEVI & ORS. ..... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Rajiv Sharma was travelling in motor vehicle described as
Eicher Canter bearing registration no. DL 1GC 4842 (hereinafter
referred to as the vehicle) on 04.08.2016, it statedly being driven by
the fourth respondent, it being a vehicle registered in the name of fifth
respondent, admittedly insured against third party risk with the
appellant insurance company for the period in question. The vehicle
had reached in the vicinity of Gurukul Industrial Area of Suruj Kund,
Faridabad at about 9 a.m. when the driver suddenly applied brakes,
resultant upon which the door on the left side flung upon and the
deceased sitting near the said door fell out, his hand in the process of
fall coming in contact with an electric wire through which the
electrical current was running. He suffered electrocution and was
immediately rushed to nearby Asian Hospital, Faridabad where he was
declared brought dead. During the investigation by the police, which
had registered a case in this context as FIR No. 508/2016 police
station Suraj Kund, Faridabad, Haryana, the dead body of Rajiv
Sharma was subjected to post-mortem examination, the opinion of
autopsy doctor recorded thereupon being that the death had occurred
due to cardiac arrest on account of electric shock which was ante-
mortem and sufficient to cause death in the ordinary course of nature.
2. The wife, father and mother of Rajiv Sharma, they being first to
third respondents herein (the claimants) instituted accident claim case
(MACT 4906/2016), impleading the driver, owner and the appellant
insurer as respondents. The claim was contested by the insurer, driver
and owner suffering the proceedings ex-parte not even filing a written
statement. The claim was decided by the Tribunal by judgment dated
19.04.2017 upholding the claim for compensation on the basis of
finding that the death had occurred due to negligent driving of the
vehicle, the liability having been fastened against the appellant
insurance company to pay the compensation.
3. By the appeal at hand, the insurer raises two contentions, the
first being that the above facts and circumstances cannot be treated as
a case of death on account of negligent driving. Pointedly, the
argument is that the post-mortem examination report certified that the
death had occurred on account of cardiac arrest due to electric shock.
The second contention is that the deceased was apparently moving as
gratuitous passenger and, therefore, the insurer has no liability to
indemnify.
4. The appeal must be dismissed at the threshold, because both
grounds do not appeal to this Court.
5. The plea of gratuitous passenger was concededly not raised as a
defence before the Tribunal. This question was not even asked of the
claimants nor any effort made to ascertain from the owner or driver
who could have been easily summoned their presence being
compelled to secure explanation.
6. The submission that this is not a case of death on account of
negligent driving is against the evidence which was led. There is clear
evidence noted by the Tribunal indicating that the door of the vehicle
on the left side where the deceased was sitting at the crucial point of
time had suddenly opened while the vehicle was in motion. But for the
fact that the driver had suddenly applied brakes even while the vehicle
was moving at high speed, this would not have happened, and the fact
that the deceased fell out from the moving vehicle itself confirms
negligence on the part of the driver. It is only an added circumstance
that the deceased unfortunately fell on a live electric wire in the
process leading to cardiac arrest.
7. The appeal is dismissed in limine.
8. The insurance company is directed to satisfy the award by
requisite deposit with the Tribunal within 30 days.
9. The statutory amount shall be refunded after furnishing proof of
compliance.
R.K.GAUBA, J.
JULY 21, 2017
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