BHARTI AXA GENERAL INSURANCE CO LTD v. INDU GUPTA & ANR

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 2019:DHC:4212 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:

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 selfemployed, 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.