Mac. App. No.253/2010 Page No.1 of 2 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Mac. App. No.253 of 2010 & C.M. Appl. Nos.7287-7289 of 2010 % 02.06.2010 NATIONAL INSURANCE CO. LTD. …... Appellant Through: Mr. Kamal Deep, Advocate. Versus PUSHPA & ORS. …...Respondents Reserved on: 27th April, 2010 Pronounced on: 2nd June, 2010 JUSTICE SHIV NARAYAN DHINGRA 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the reporter or not? 3. Whether judgment should be reported in Digest? J U D G M E N T 1. By this appeal, the appellant has assailed order dated 19th January, 2010 whereby the learned Tribunal awarded a compensation of Rs.13,56,000/- to the dependents of the deceased in a petition under Section 166/140 of Motor Vehicles Act. 2. The award has been assailed on the ground that the Tribunal erred in taking future prospects of the deceased and the Tribunal failed to appreciate that it was a case of composite negligence and the liability of the insurance company, therefore should have been 50 per cent of the award. Along with appeal, an application under Order 41 Rule 27 CPC, being C.M. Appl. No.7289 of 2010 is made to permit the insurance company to place on record additional evidence to show that the deceased was member of ESIC and had received claim from ESIC. 3. The appellant had sufficient opportunity before the Tribunal to lead evidence. What made the appellant not to lead evidence in respect of deceased being member of ESIC before the Tribunal? Perusal of award shows that this stand was not even taken Mac. App. No.253/2010 Page No.2 of 2 before the Tribunal. Under Order 41 Rule 27 CPC, the appeal court can permit additional evidence to be adduced only where despite due diligence, the appellant could not come to know of the evidence, which came to its knowledge later on, and that the appellant had made all efforts to produce evidence. It is not the case of the appellant. I, therefore, consider that this application under Order 41 Rule 27 was not maintainable and is dismissed as such. 4. The challenge to the award by insurance company on the ground of negligence of driver not being there or composite negligence is not maintainable in view of Section 149 (2) of the Motor Vehicles Act, 1988 permitting insurance company to defend the action only on the ground of breach of conditions of policy (National Insurance Company Limited, Chandigarh vs. Nicolletta Rohtagi & Ors.; AIR 2002 SC 3350). 5. Perusal of the award shows that the learned Tribunal calculated compensation strictly as per case law laid down by the Supreme Court in Sarla Varma & Ors. vs. Delhi Transport Corporation & Anr.; (2009) 6 SCC 121. The income of the deceased was proved by calling witness from the employer. Future prospects were added as per the Supreme Court’s judgment in Sarla Varma’s case (supra). Multiplier and deduction for personal expenses were also made as per Sarla Varma’s case (supra). The calculation of compensation has been done as per parameters laid down by the Supreme Court. 6. I consider it was not a fit case to admit the appeal. The appeal is dismissed in limine. SHIV NARAYAN DHINGRA J. JUNE 02, 2010 ‘AA’