Shriram General Insurance Co. Ltd. vs Sushev Kumar & Ors.

$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Date of decision: 08 October 2026
# CNR No. DLHC010063402021
+ MAC.APP. 21/2021 & CM APPL. 1443/2021
SHRIRAM GENERAL INSURANCE CO. LTD. .....Appellant
Through: Mr. Kunal Aggarwal, Advocate.

versus

SUSHEV KUMAR & ORS. .....Respondents
Through:

CORAM:
HON'BLE MR. JUSTICE ANISH DAYAL
JUDGMENT

ANISH DAYAL, J. (ORAL)

1. This appeal has been filed by the Insurance Company challenging the
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impugned award dated 19 October 2020 passed by Motor Accidents Claims
Tribunal (‘ MACT/Tribunal ’), New Delhi District, Patiala House Courts,
awarding compensation of Rs. 65,34,081/- along with interest at 9% in
relation to the injury sustained by claimant in an accident which occurred on
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09 December 2014.
2. The claimant was travelling with his colleagues in a car bearing
registration no. UP-16X-2222 driven by one Intazar Hussain . When they
reached Tolstoy Marg red light, Barakhambha Road , a truck bearing no. HR-
38K-0190 (hereinafter, ‘ offending vehicle ’), came from the Tolstoy Marg
Signature Not Verified

MAC APP. 21/2021 1 of 7

Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
19:05:08

side, skipped the red light and hit their car. The car went under the front and
rear wheels of the offending vehicle and was dragged for about 15 meters.
3. The occupants sustained grievous injuries and Intazar Hussain was
declared brought dead. Counsel for appellant/Insurance Company, states that
the other two claim petitions were settled with respect to the other injured
claimant- Suman Sindhu and deceased- Intazar Hussain .
4. Claimant/ Sushev Kumar was certified with 30% permanent visual
disability and was also treated equivalent to his functional disability at 30% ,
since it was assessed to have an actual impact on his earning capacity.
5. Mr. Kunal Aggarwal , counsel for appellant/Insurance Company,
contends that the insurer of the vehicle in which the claimant/ Sushev Kumar
had been traveling in, also ought to have been impleaded as a party,
considering that there was contributory negligence on behalf of the driver of
the car in which the claimant had been travelling as an occupant.
6. However, on an examination of both the impugned award and the
evidence, the Court does not find any material in terms of any proof of
negligence of the driver of the car itself, which has been placed on record.
7. Quite to the contrary, evidence of the claimant/ Sushev Kumar (‘ PW-1 ’)
is clear and states that their vehicle had hit the truck from its left side in the
middle and the car had been dragged for quite some distance. He denied that
driver of the car did not apply brakes, due to which the accident took place.
He volunteered that as per the investigation report, the vehicle had skidded on
the road and there were impressions of tyre marks on the road.
8. As regards the issue of contributory negligence, it is pertinent to note
that burden of proving contributory negligence lies on the person alleging
Signature Not Verified

MAC APP. 21/2021 2 of 7

Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
19:05:08

contributory negligence. Reliance can be placed on the decision of Supreme
Court in Usha Rajkhowa v. Paramount Industries , (2009) 14 SCC 71,
wherein, the Court dealt with a case involving a collision between a truck and
a car, and the Tribunal had attributed 50% contributory negligence to the
driver of the car. The Supreme Court, while considering the principles
governing contributory negligence and the burden of proving the same, held
as under:
“20. The question of contributory negligence on the part
of the driver in case of collision was considered by this
Court in Pramodkumar Rasikbhai Jhaveri v. Karmasey
Kunvargi Tak [(2002) 6 SCC 455 : 2002 SCC (Cri)
1355] . That was also a case of collision between a car
and a truck. It was observed in SCC p. 458, para 8:
“8. … The question of contributory negligence
arises when there has been some act or omission
on the claimant's part, which has materially
contributed to the damage caused, and is of such a
nature that it may properly be described as
‘negligence’. Negligence ordinarily means breach
of a legal duty to care, but when used in the
expression ‘contributory negligence’ it does not
mean breach of any duty. It only means the failure
by a person to use reasonable care for the safety of
either himself or his property, so that he becomes
blameworthy in part as an ‘author of his own
wrong’.”
21. This Court further relied on an observation of the
High Court of Australia in Astley v. Austrust
Ltd. [(1999) 73 ALJR 403] to the following effect:
“A finding of contributory negligence turns on a factual
investigation whether the plaintiff contributed to his or
her own loss by failing to take reasonable care of his or
her person or property. What is reasonable care
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MAC APP. 21/2021 3 of 7

Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
19:05:08

depends on the circumstances of the case. In many
cases, it may be proper for a plaintiff to rely on the
defendant to perform its duty. But there is no absolute
rule. The duties and responsibilities of the defendant are
a variable factor in determining whether contributory
negligence exists and, if so, to what degree. In some
cases, the nature of the duty owed may exculpate the
plaintiff from a claim of contributory negligence; in
other cases, the nature of the duty may reduce the
plaintiff's share of responsibility for the damage
suffered; and in yet other cases, the nature of the duty
may not prevent a finding that the plaintiff failed to take
reasonable care for the safety of his or her person or
property. Contributory negligence focuses on the
conduct of the plaintiff. The duty owed by the defendant,
although relevant, is one only of many factors that must
be weighed in determining whether the plaintiff has so
conducted itself that it failed to take reasonable care for
the safety of its person or property.”
22. Keeping these principles in mind, we find that there
was absolutely no evidence to suggest that there was any
failure on the part of the car driver to take any
particular care or that he had breached his duty in any
manner. Such breach on his part had to be proved by the
insurance company as it was its burden and for that, the
panchnama of the spot, showing tyre marks caused by
brakes, and the panchnama of the damaged car and the
truck could have been brought on record. The insurance
company has obviously failed to discharge its burden.
We, therefore, respectfully follow the abovementioned
judgment.”
(emphasis added)

9. Reliance may also be placed upon the decision of this Court in
UPSRTC v. Subhash & Anr. , 2026:DHC:7203, where this Court was
Signature Not Verified

MAC APP. 21/2021 4 of 7

Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
19:05:08

considering the issue of contributory negligence in a head-on collision
between a car and a truck, where the truck had been coming from the opposite
side and had collided with car resulting in the death of an occupant of the car.
Traversing the law on contributory negligence in head-on collisions, this
Court culled out the following principles:
“8. The following principles can be culled out from the
abovementioned judgments:
I. Head-on collision does not, by itself, establish
contributory negligence: The mere fact that two vehicles
collided head-on cannot lead to an automatic inference
that both drivers were equally negligent. Contributory
negligence must be determined from the evidence and
surrounding circumstances of each case.
II. Burden lies on the party alleging contributory
negligence: The insurer or the party alleging
contributory negligence must establish, by cogent
evidence, the specific act or omission attributable to the
claimant which materially contributed to the accident or
the resultant injury. In the absence of such evidence, no
deduction can be made on the ground of contributory
negligence.
III. Contributory negligence requires proof of failure to
exercise reasonable care: There must be evidence
showing that the claimant failed to take reasonable care
for his or her own safety and that such failure materially
contributed to the accident or damage suffered. Mere
involvement in, or presence during, the accident does
not amount to contributory negligence.”
(emphasis added)

10. MACT has correctly assessed this as a serious attempt to stop the car.
There is no dispute that the truck driver had skipped the red light and,
therefore, the issue of composite negligence or contributory negligence stands
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Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
19:05:08

to be not proved and cannot be taken into account.
11. The other issue that has been raised relates to the quantum of
compensation. While assessing the compensation, MACT has taken the
income of injured on the basis of his earnings in Zephyr Infratech Private
Limited , Noida UP, where he was earning a gross salary of Rs. 50,000/- per
month. The employment certificate had been exhibited as Ex. PW-1/H and
salary slips for three months had also been exhibited. Ankit Kumar , Director
of the Company had been examined as PW-2 . He stated that the Company had
50 employees, out of which 20 to 25 were employees working in marketing.
12. MACT also took into account that he had completed his post-
graduation, i.e. Masters in Computers Applications ( MCA ) and the claimant/
Sushev Kumar had been working on probation with the Company for three
months.
13. The notional income was taken at Rs.46,685/- per month after assessing
the salary slips. Therefore, the Court considers this to be just and reasonable
and therefore, the contention of appellant/Insurance Company is rejected.
14. Accordingly, the appeal stands dismissed. Pending applications (if any)
are rendered infructuous.
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15. By order dated 15 January 2021, appellant/Insurance Company was
directed to deposit the entire compensation amount along with accrued
interest before the Tribunal and 50% was directed to be released as per the
scheme of impugned award and balance amount was kept in interest bearing
fixed deposits. Considering that the appeal has been dismissed, the balance
amount along with accrued interest, shall continue to be released as per the
scheme of MACT.
Signature Not Verified

MAC APP. 21/2021 6 of 7

Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
19:05:08

16. Statutory deposit, if any, be refunded to Insurance Company, only if
the order of deposit has been complied with.
17. Judgment be uploaded on the website of this Court.

ANISH DAYAL, J
OCTOBER 8, 2026/RK/ sp
Signature Not Verified

MAC APP. 21/2021 7 of 7

Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
19:05:08