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In absence of contributory negligence, all the fully dependent claimants would be entitled to claim under MVA: High Court of Delhi

When there is no material whatsoever to suggest that the deceased was negligent so as to apply the principle of contributory negligence then all the claimants fully dependent upon the income of the deceased as the sole bread earner of the family would be entitled to claim under the Motor Vehicle Act and the same was upheld by High Court of Delhi through the learned bench led by Justice Sanjeev Sachdeva in the case of THE ORIENTAL INSURANCE CO LTD. vs. SMT SARITA NAYAK MUKHERJEE & ORS. [MAC.APP. 29/2022] on 02.03.2022.

The facts of the case are that the petition is filed contending that the husband of claimant was going on his motor cycle at a normal speed wearing a helmet and on the correct side of the road. 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 ack 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.

The appellant’s counsel submitted 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. It was further submitted 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.

The respondent’s counsel submitted that the testimony of the eyewitness, who had appeared 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. It was further submitted that the father of the deceased was a senior citizen and physically handicapped and completely.

The Court held 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 and also ground of ‘loss of consortium’ does not warrant any interference.

The Court observed that “when there is no material whatsoever to even suggest that the deceased was negligent so as to apply the principle of contributory negligence then all the claimants fully dependent upon the income of the deceased as the sole bread earner of the family would be entitled to claim under the Motor Vehicle Act.”

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Judgment reviewed by – Shristi Suman

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