National Insurance Co Ltd v. Naresh Kumar

1. This appeal impugns the award of compensation dated 08.06.2018 passed by the learned MACT in MACP No. 3951/16, whereby a compensation of Rs. 32,83,000/- has been granted. According to the appellant, the accident is a clear case of contributory negligence, therefore, some fault ought to have been apportioned apropos the deceased.

2. The motor vehicular accident occurred on 30.07.2014 at about 4:40 am, when the deceased was driving his Canter truck towards Barapulla Flyover in New Delhi, the offending vehicle a truck tanker bearing no. UP- 53T-7119, which was being driven in a rash and negligent manner, suddenly came and stopped in front of it, without giving any indication, resultantly the 2019:DHC:5270 victim’s vehicle crashed into the offending vehicle, to cause the unfortunate fatal accident. The deceased crashed into the truck ahead of it. It is the appellant’s case that the nature of impact was so severe that the front portion of the canter got severely damaged and the Fire Brigade had to be called to extract the body of the deceased/driver. The driver of the alleged offending/insured vehicle was the one who had intimated the police about the accident. He was a complainant in the FIR. His statement to the police which forms the basis to the FIR is as under:- “….that he started his journey in his vehicle from Lakhimpur to Brajwasan. When he reached at Sarai Kale Khan petrol pump on 30.07.2014 at about 4:40 am on the way towards Ashram, there was a road jam and his vehicle stopped working by itself. He got up from vehicle to inspect it. It was that time that the canter vehicle had rammed into the deceased vehicle. The driver asked to people nearby him to assist him. He himself called the police…..”

3. The Court would note that the Investigating Officer in his Final Report has opined that “the accident was caused due to the fault/negligence of the deceased….”. It is also recorded that he went to the site of the accident at around 7:50 am i.e. after 3½ hours of the accident.

4. Be that as it may, what is to be seen is that according to the Site Plan, the offending vehicle is shown to be parked on the extreme left side of the road (page 301 of the LCR). The Site Plan is as under: It is noted that either it was being driven on the extreme left side of the road or otherwise would have been so parked. There would be no reason for a vehicle coming from behind to be driven at such a high speed that it crashed into the stationary or slow moving vehicle. It is, of course, possible that the emergency blinkers or parking lights of the offending vehicle had not been turned on. The accident happening in the wee morning hours, visibility could well have been low. Ordinarily in the month of July, the sun rises at about 5:40 am in Delhi. The nature of impact clearly shows that the deceased’s vehicle at such a high speed crashed into the offending vehicle from the rear side, that the body of the deceased had to be extracted with the assistance of fire brigade personnel. To that extent, there would be an element of contributory negligence by the deceased. The same is fixed at 10%.

5. The Court would note that there are five claimants. No compensation has been granted to them towards ‘loss of love and affection’ whereas for compensation towards ‘loss of consortium’ only Rs. 40,000/- has been granted to the claimants by the learned Tribunal. Accordingly, in terms of the dicta of the Supreme Court in Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Ors. 2018 SCC OnLine SC 1546, each of the claimants shall be entitled to compensation towards ‘loss of consortium’ and ‘loss of love and affection’ @ Rs. 40,000/- and Rs. 50,000/-, respectively. It is so granted.

6. Thus, the amount payable to the claimants is as under: S.No. Particulars Amount

1. Awarded Amount [Rs. 32,83,000/- (total compensation awarded by Tribunal) less Rs. 3,28,300/- (10% contributory negligence)] Rs. 29,54,700/-

2. Loss of love and affection [Rs. 50,000 x 5 (claimants)] Rs. 2,50,000/-

3. Loss of consortium [Rs.40,000 x 5 (claimants) less Rs. 40,000/- (already awarded)] Rs. 1,60,000/- TOTAL Rs. 33,64,700/-

7. The aforesaid additional amount alongwith interest @ 9% be deposited before the learned Tribunal, within three weeks from the date of receipt of copy of this order, to be released to the beneficiaries of the Award, in terms of the scheme of disbursement as specified therein.

8. Since the appellant has partially succeeded in the appeal, the statutory amount, alongwith interest accrued thereon, be returned to the appellant.

9. The appeal is disposed-off in the above terms.

NAJMI WAZIRI, J OCTOBER 15, 2019 RW