Delhi High Court
Sbi General Insurance Co Ltd vs Geetu & Ors on 28 July, 2017
$~34
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 28th July, 2017
+ MAC.APP. 658/2017 and CM 26635-26636/2017
SBI GENERAL INSURANCE CO LTD ..... Appellant
Through: Mr. Sameer Nandwani, Advocate
versus
GEETU & ORS ..... Respondents
Through
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The accident claim case (MACP) 104/15 instituted by the first
to fourth respondents herein (the claimants) related to the death of
Constable Yogesh Kumar, a member of Delhi traffic police in a motor
vehicular accident that occurred on 10.04.2015 at about 1.15 p.m. at a
traffic police check point near underpass on National Highway 8,
Rajokri opposite City Park Hotel, Rajokri, New Delhi in which he was
crushed to death by a truck bearing no.HR-38T-2946 which was
admittedly insured against third party risk for the period in question
with the appellant insurance company (insurer).
2. The Tribunal, after inquiry, on the basis of evidence led,
accepted the case of the claimants about the death having been caused
due to negligence on the part of the truck driver and, by judgment
dated 01.05.2017, awarded compensation in the sum of Rs.54,44,140/-
with interest at the rate of 9% p.a. fastening the liability on the
appellant, there being no plea of breach of terms and conditions of the
insurance policy.
3. The insurer, by the appeal at hand, seeks to question the said
judgment of the Tribunal on the ground that the evidence showed that
the deceased himself was negligent as he had come in the path of the
truck which was moving in exercise of its right of way. It is also the
contention of the insurer that the tribunal failed to deduct the benefit
of ex gratia payment that was received by the widow and also the
benefit arising out of she being appointed in Delhi police on
compassionate grounds in lieu of the position held by her husband.
4. The Tribunal has discussed the evidence of Constable Ashok
Kumar (PW-2) in the impugned judgment concerning the sequence of
events leading to the accident. It is clear from the said evidence that
the deceased was deployed on traffic check duty at the place in
question in the company of other officials of the traffic police. They
were trying to intercept a truck which was moving on the road but it
would not stop and when the deceased was about to return to the road
side he was hit by the truck in question. In these facts and
circumstances where the driver of the truck in question did not enter
the witness box, there being no explanation from his side as to why he
could not stop in spite of noticing the traffic police on check duty, the
negligence on his part is writ large. The deceased was doing his duty
as a public servant and it is not fair to read into it the element of
contributory negligence.
5. The other contentions have been duly considered by the
Tribunal with reference to the decisions of the Supreme Court in
Vimal Kanwar and Ors., Vs. Kishore Dan & Ors., (2013) 7 SCC 476
such benefits not being in the nature of pecuniary advantage liable to
be deducted. The view taken by the Tribunal is in accord with the
view expressed by this court in Oriental Insurance Company Ltd. Vs.
Sukhpal Singh and Anr. MACA 478/2015, decided on 27.07.2017.
6. The appeal, thus, is devoid of merits and is dismissed in limine.
The pending applications also stand dismissed.
7. The insurance company must satisfy the award within four
weeks by requisite deposit with the tribunal.
8. The statutory amount shall be refunded after the award is
satisfied.
R.K.GAUBA, J.
JULY 28, 2017
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