Delhi High Court
Bharti Axa General Insurance Co ... vs Indu Gupta & Anr. on 28 August, 2019
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 28.08.2019
+ MAC.APP. 510/2015, CM APPL. 11560/2015 & CM APPL.
8184/2019
BHARTI AXA GENERAL INSURANCE CO LTD ..... Appellant
Through: Mr. Navneet Kumar and Mr. Mohit
Singh, Advocates.
Versus
INDU GUPTA & ANR ..... Respondents
Through: Mr. Vineet Chadha, Mr. Ajay Kumar
and Mr. Pavit Singh, Advocates.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
CM APPL. 8184/2019 (by R-1 & R-2 for early hearing)
1. This application seeks early hearing of the appeal.
2. For the reasons mentioned in the application, it is allowed.
MAC.APP. 510/2015, CM APPL. 11560/2015
3. At joint request, the appeal is taken up for hearing.
4. The award of compensation dated 30.03.2015 in MACP No. 706/2013
is impugned on the ground that no contributory negligence has been
apportioned to the driver of the motor car. The appellant argues that the car
which dashed into the insured vehicle was going at a high uncontrollable
speed and resultantly crashed ahead into the insured truck, appropriate
contributory negligence should have been apportioned upon the driver of the
motor car which dashed into the truck. This aspect has been dealt with in
the impugned order as under:
"18. The petitioners has well explained the mode
and manner of the driver of the offending vehicle
resulting the fatal injuries caused to all deceased
due to vehicular accident in this case. Moreover
the insurance company has failed to establish that
the violation of deceased driver was so
fundamental in nature as would have contributed
to the very cause of accident. Further the driver of
the offending vehicle /respondent No.1 has
already been charge sheeted for the offence u/s
279/283/304-A IPC, The respondent No.1 has
even not filed any complaint against police
authority for his false implication in the criminal
case before any authority. Respondents No. 1 & 2
and insurer/respondent No.3 also failed to lead
any specific evidence the aspect of contributory
negligence. Therefore, I do not agree with the
contention of the Ld. Counsel for respondents that
deceased was liable for contributory negligence.
Hence, the plea of insurer and other respondents
No.1 & 2 stand rejected. "
5. The appellant contends that: (i) the insured truck was parked on the
extreme left of the service lane into which the motor car being driven at an
uncontrollable speed crashed in broad day light, at 1:30 p.m. in the
afternoon, therefore, (ii) the accident with the insured truck was entirely
because of the rash and negligent driving of the car driver.
6. This Court is not persuaded by the said contentions because a glance,
at the photographs in the LCR it is shown that the truck was parked in the
middle of the lane for high speed vehicles, abutting the road divider. This
lane is not meant for heavy vehicles, such as the insured truck.
7. The photographs show that the car driver had struck on the left rear
side of the offending vehicle. Obviously, he made a valiant attempt to avoid
a crash with the vehicle ahead of it. All four occupants of the car i.e. two
children and their parents passed away in the unfortunate accident. The
cause of the accident is the parking of the truck in the middle of the road.
8. In view of the above, the contention apropos contributory negligence
is rejected.
9. The appellant's second argument is that instead of 40% towards 'loss
of future prospects' 50% has been granted.
10. In terms of the para 61. (iv) of National Insurance Co. Ltd. vs.
Pranay Sethi & Ors. (2017) 16 SCC 680, if the deceased was self-
employed, which was the position in the present case, an addition of 40% of
the established income is to be given for a person who is below the age of 40
years. The deceased was 34 years of age on the date of the accident,
accordingly, 40% ought to have been awarded towards 'loss of future
prospects' instead of 50%. The impugned order is modified to this extent.
11. Furthermore, in terms of the Pranay Sethi (supra), Rs. 15,000/- each
shall be payable towards 'loss of estate' and 'loss of funeral expenses'.
Additionally, the claimants shall also be entitled to compensation of Rs.
40,000/- and Rs. 50,000/- each towards 'loss of consortium' and towards
'loss of love and affection' respectively, in terms of the dicta of the Supreme
Court in Magma General Insurance Co. Ltd. vs. Nanu Ram @ Chuhru
Ram & Ors. 2018 SCC OnLine SC 1546.
12. Lastly, the appellant contends that the deduction of 1/3rd towards
personal expenses of the son was unjustified because all his dependants,
except his mother, had passed away.
13. The Court is of the view that in the peculiar facts and circumstances
of this case, the wife would not be considered dependant because she was
herself a business woman and was earning sufficient amounts for herself and
for the children.
14. In the circumstances, the deceased son's expenses would primarily go
towards care of his parents. Accordingly, 1/3 rd of his earnings would be
deducted towards personal expenses and 2/3rd was apportioned towards two
dependents i.e. parents.
15. The Court finds no reason to interfere with the impugned award in
this regard.
16. It is argued that the father was not dependent upon him, however, no
evidence has been led by the insurer to show that the father, who was 65
years of age, was not dependent upon the son.
17. In the circumstances, the learned Trial Court rightly concluded that
the father too was dependent.
18. A fresh computation of the award in terms of this order shall be
prepared and furnished to the beneficiaries of the award within three weeks
of receipt of copy of this order and the requisite amounts shall be deposited
before the learned Tribunal, within four weeks to be disbursed to the
beneficiaries of the award in terms of the scheme of disbursement specified
in the award.
19. Excess amounts, if any, be returned to the appellant, alongwith the
statutory deposit and corresponding interest accrued thereon.
20. The appeal is disposed-off in the above terms.
NAJMI WAZIRI, J
AUGUST 28, 2019
AB
