Delhi High Court
The Oriental Insurance Co Ltd vs Smt Sarita Nayak Mukherjee & Ors. on 2 March, 2022
$~4
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 02.03.2022
+ MAC.APP. 29/2022
THE ORIENTAL INSURANCE CO LTD ..... Appellant
versus
SMT SARITA NAYAK MUKHERJEE & ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioner: Mr. A.K.Soni, Advocate (through VC)
For the Respondent: Mr. S.N.Parashar, Advocate (through VC).
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. Appellant impugns award dated 11.10.2021 whereby the claim
petition has been allowed and compensation awarded.
2. Subject claim petition was filed contending that the husband of
claimant No. 1, father of claimant No. 2 and the son of claimant No. 3
& 4 was going towards Shadipur Chowk from Hero Honda Chowk on
his motor cycle at a normal speed wearing a helmet and on the correct
side of the road. When the motor cycle crossed Hero Honda Chowk a
Trolla (a long body truck) which was being driven by its driver at a
very high speed rash negligently in a zig-zag manner and without
applying proper lookouts and without giving any horn came from the
Signature Not Verified
MAC.APP.29/2022 Digitally Signed1
By:JUSTICE SANJEEV
Digitally Signed By:KUNAL SACHDEVA
MAGGU Signing Date:02.03.2022
Signing Date:03.03.2022 07:43:27 20:58
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
back side and hit the motor cycle with a great force as a result of
which the deceased fell on the road along with his motor cycle and the
back wheel of the offending trolla passed over his head on account of
which he sustained fatal crush injuries and expired on the spot.
3. Learned counsel for the appellant/insurance company submits
that the Tribunal has erred in not appreciating that the deceased was
himself contributory negligent and further the Tribunal has erred in
not discussing the manner in which the accident has taken place in the
impugned judgment.
4. Learned counsel further submits that the Tribunal has erred in
taking the father of the deceased as a dependent and accordingly has
erred in not reducing the salary appropriately for personal expenses.
5. Learned counsel for the appellant further contends that Tribunal
has erred in awarding a sum of Rs.1,60,000/- towards 'loss of
consortium'.
6. Learned counsel appearing for the respondent/claimants submits
that the testimony of the eyewitness, who had appeared as PW-2 and
who was also accompanying the deceased on another motor cycle has
been unrebutted. He submits that there was no effective cross-
examination to the said eyewitness, said eyewitness had taken the
photographs at the site and duly proved the same in evidence.
7. Learned counsel further submits that the father of the deceased
was a senior citizen and physically handicapped and completely
Signature Not Verified
MAC.APP.29/2022 Digitally Signed2
By:JUSTICE SANJEEV
Digitally Signed By:KUNAL SACHDEVA
MAGGU Signing Date:02.03.2022
Signing Date:03.03.2022 07:43:27 20:58
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
dependent on the deceased and there is no cross-examination or
rebuttal to the evidence led by the claimants.
8. Perusal to the testimony of PW-2, who was an eyewitness,
shows that he had categorically and explicitly explained the manner in
which the accident had taken place and there is virtually no cross-
examination to the mode and manner of the accident. The eyewitness
has categorically stated that the motor cycle was being driven in the
middle lane and which shows that the Trolla which was supposed to
be kept in the extreme left lane had crossed over to the middle lane
which is meant for motor cycles and slow moving vehicles.
9. There is also no other evidence produced by the Insurance
Company to rebut the testimony of the eyewitness and further the
testimony has remained unshaken in the cross examination.
10. In so far as the finding of dependency of the father is concerned,
the wife of the deceased, in her evidence, has categorically stated that
the mother of the deceased is a housewife and has been suffering from
diabetic, hypertension, thyroid and is a heart patient and the father of
the deceased is a senior citizen, physically handicapped and suffering
from other physical ailments and has no other source of income
whatsoever. It is specifically deposed that all the claimants were fully
dependent upon the income of the deceased as he was the sole bread
earner of the family. There is no rebuttal or cross-examination on the
said aspect.
Signature Not Verified
MAC.APP.29/2022 Digitally Signed3
By:JUSTICE SANJEEV
Digitally Signed By:KUNAL SACHDEVA
MAGGU Signing Date:02.03.2022
Signing Date:03.03.2022 07:43:27 20:58
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
11. Further, in view of the judgment of the United India Insurance
Co. Ltd. vs Satinder Kaur @ Satwinder Kaur, 2020 SCC OnLine SC
410 the award of sum of Rs. 1,60,000/- on the ground of 'loss of
consortium' also does not warrant any interference.
12. On perusal of the evidence which had been brought on record,
particularly the testimony of the eye witness PW-2 and the documents
exhibited, I am of the view that the Tribunal has not committed any
error in returning a finding of negligence on the part of the driver of
the Trolla which was insured with the appellant/insurance company
and also with regard to the computation of income of the deceased and
the dependency. Further, there is no material whatsoever to even
suggest that the deceased was negligent so as to apply the principle of
contributory negligence.
13. In view of the above, I find no infirmity in the impugned award,
and consequently no merit in the appeal.
14. The appeal is accordingly dismissed.
15. Tribunal is accordingly directed to disburse the amount as per
the scheme of disbursal.
SANJEEV SACHDEVA, J.
MARCH 02, 2022
rk
Signature Not Verified
MAC.APP.29/2022 Digitally Signed4
By:JUSTICE SANJEEV
Digitally Signed By:KUNAL SACHDEVA
MAGGU Signing Date:02.03.2022
Signing Date:03.03.2022 07:43:27 20:58
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
