Delhi High Court
Shriram General Insurance Co. ... vs Poonam Devi & Ors. on 26 February, 2020
$~23&24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 26.02.2020.
+ MAC.APP. 471/2017 & CM APPL. 19037/2017
SHRIRAM GENERAL INSURANCE CO. LTD ..... Appellant
Through: Mr. Mohd. Mobashshir, Adv.
versus
POONAM DEVI & ORS. ..... Respondents
Through: Mr. Manu Shahalia, Adv.
+ MAC.APP. 747/2017
POONAM DEVI & ANR. ..... Appellants
Through: Mr. Manu Shahalia, Adv.
versus
SHRIRAM GENERAL INSURANCE CO. LTD & ORS.Respondents
Through: Mr. Mohd. Mobashshir, Adv.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
1. This appeal impugns the award dated 28.03.2017, passed by the
learned MACT in suit no. 3511/2016 on the ground that, albeit, it was noted
that the deceased was under the influence of alcohol at the time of the motor
accident but no contributory negligence was apportioned to him. The
impugned order has dealt with the issue as under:-
MAC.APP. 471/2017& 747/2017
Signature Not Verified
Digitally signed By:KAMLESH
KUMAR
Signing Date:12.03.2020
11:22:34
"21. Although, in the MLC Ex. PW1/5, alcohol is suspected in
the breath of the deceased but that is not sufficient to return a
finding of contributory negligence of the deceased. Moreover, it
is not that the deceased was not using the Zebra Crossing. He
was coming from service lane and was near Zebra Crossing
when the accident took place. Therefore, the argument of the
Insurance Company to impute 50% negligence for the accident
on the part of the deceased is rejected."
2. The Court is of the view that in order to establish contributory
negligence on part of the deceased, on account of him being under influence
of alcohol at the time of the motor accident, two elements have to be
established (i) that the degree of alcohol in the blood of the person
concerned ought to have been above the permissible limit and (ii) that the
same should have contributed to the accident itself. Even in a case where a
person is inebriated and/or where alcohol content is higher than the
permissible limit i.e. 30 ml. of 100 ml., it would not necessarily lead to an
inference that his condition had contributed to the occurrence of the
accident, if the circumstances are as stark as him being run over by a clearly
negligently driven offending vehicle. Suppose such a person was walking
on the extreme left side of the road, which had no demarcated footpath, and
a rampaging vehicle runs over him from behind, no contributory negligence
can be apportioned to such a victim because his contribution to the accident
would not be his inebriated condition. Instead the sole cause would be the
rampaging nature of the offending vehicle. In the present case, the degree of
inebriation or alcohol in the blood of the deceased was not ascertained,
therefore, simply on the basis of smell of alcohol from the breath of the
victim, it could not be concluded that he was under the influence of alcohol
MAC.APP. 471/2017& 747/2017
Signature Not Verified
Digitally signed By:KAMLESH
KUMAR
Signing Date:12.03.2020
11:22:34
to such an extent that he did not know the right from wrong at the zebra
crossing. The fact that he was crossing the road at the zebra crossing itself
goes on to show that he was conscious that it was an earmarked portion or a
safe zone for crossing the road.
3. In view of the above there is no merit in the appeal. The same is
dismissed.
4. Since the appeal has been dismissed, the statutory amount, along with
interest accrued thereon, shall be deposited into the „AASRA‟ Fund created
by this Court for the amelioration or the conditioning and rehabilitation of
burns victims.
MAC. APPL. 747/2017
5. In this cross appeal the claimant seeks enhancement of the award of
compensation on the ground that compensation towards "loss of future
prospects" has not been granted. The deceased was 27 years of age at the
time of the motor accident. He was assumed to be self employed. Therefore
in terms of dicta of Supreme Court in National Insurance Co. Ltd. vs.
Pranay Sethi & Ors., (2017) 16 SCC 680 "loss of future prospect" @ 40 %
shall be payable to him. The same is granted to him. The amount payable
under the head of "loss of dependency" shall be as under:-
Rs. 18,000/-(monthly income) x 12 (months) x 17 (multiplier) x
75/100 (1/4th deduction towards personal expenses) x 140/100 (40%
towards loss of future prospects). = Rs. 38,55,600/-.
6. The aforesaid enhanced amount shall be paid to the claimants along
with interest @ 9% per annum from the date of filing of the claim petition
till its realization. The amounts shall be deposited before the Tribunal
MAC.APP. 471/2017& 747/2017
Signature Not Verified
Digitally signed By:KAMLESH
KUMAR
Signing Date:12.03.2020
11:22:34
within three weeks of receipt of the copy of this order and the same shall be
disbursed to the claimants in terms of the scheme of disbursement provided
therein. The amount already paid shall be set off.
7. The appeal is allowed and disposed off in the above terms.
NAJMI WAZIRI, J
FEBRUARY 26, 2020
kb
MAC.APP. 471/2017& 747/2017
Signature Not Verified
Digitally signed By:KAMLESH
KUMAR
Signing Date:12.03.2020
11:22:34
