The New India Assurance Company Limited vs Smt. Vijan Bala Jacob & Ors.

The present appeal under Section 173 of the Act, 1988 has been preferred by the Insurance Company challenging the impugned award dated 16.10.2023, passed in Claim Case No.45/2021, whereby the learned Claims Tribunal dismissed the plea of Insurance Company with regard to contributory negligence on the part of the deceased and fastened the liability upon Insurance Company to satisfy the award amount first.

Mr. Dashrath Gupta, learned counsel for the appellant/Insurance Company submitted that the learned Claims Tribunal has erred in not attributing any contributory negligence to the deceased, despite the material on record indicating that, at the time of the accident, the deceased was proceeding on the wrong side of the road. It was contended that the deceased, by driving on the wrong side, had contributed to the occurrence of the accident and, therefore, an appropriate percentage of contributory negligence ought to have been attributed to him while determining the compensation payable to the claimants. Learned counsel further submitted that while computing the compensation, the learned Tribunal has erred in not making the requisite deduction towards income tax from the income of the deceased.

On the other hand, learned counsel for respondent Nos. 1 to 3 opposing the argument advanced by learned counsel for the appellant/Insurance Company submits that the learned Tribunal has not committed any error of law with respect to contributory negligence. The award impugned being just, proper and reasonable, does not call for any interference by this Court.

I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

So far as the question of contributory negligence is concerned, the claimants have examined Sheikh Niyajuddin (AW-2), eye witness to the incident, who has specifically attributed rash and negligent driving to the driver of the offending vehicle, namely, Sudaru Ram Kadati. The said Sheikh Niyajuddin (AW-2) is also shown as a listed witness in the police final report (Ex.A-7), wherein Sudaru Ram Kadati has been charge-sheeted in connection with the accident. Thus, the statement of the aforesaid eye-witness finds corroboration from the investigation conducted by the police and the charge-sheet submitted pursuant thereto.

It is significant that, in rebuttal of the testimony of the said eye-witness, neither the driver nor the owner of the offending vehicle, nor any other witness, has been examined on behalf of the Insurance Company. In the absence of any cogent and reliable evidence to establish that the deceased had also contributed to the occurrence of the accident, the plea of contributory negligence raised by the Insurance Company cannot be accepted. Accordingly, this Court finds no infirmity in the finding recorded by the learned Tribunal in declining to attribute any contributory negligence to the deceased. The said finding, therefore, warrants no interference and is hereby affirmed.

In the case in hand, it is not in dispute that deceased Anup Jacob was in Government employee holding the post of Headmaster in Geedam Primary School at the time of the accident and was drawing gross salary of Rs.73,083/- per month. The said income is duly established from the salary slips (Ex. A-9 and A-10). Accordingly, the finding of the learned Tribunal assessing the monthly income at Rs.73,083/- is just and proper.

The learned claims Tribunal, considering the nature of job of deceased at the time of accident 17.07.2020, the fact that he was aged 58 years, and number of dependents (03), has rightly taken future prospect of 15%, deducted 1/3rd towards personal expenses and applied multiplier of 9.

So far as the amount awarded under the conventional heads is concerned, the learned Tribunal has awarded a sum of Rs.1,32,000/- towards consortium, Rs.16,500/- towards loss of estate and Rs.16,500/- towards funeral expenses, which in the facts and circumstances of the case, is found to be just and proper.

Thus, taking monthly income of the deceased as Rs.73,083/-, the annual income comes to Rs.8,76,996/-. The deceased was salaried person so considering the age of the deceased i.e. 58 years, as per Pranay Sethi (supra), the future prospects would be 15%. After adding 15% future prospects i.e. Rs.1,31,549/- the annual income of the deceased comes to Rs. 10,08,545/-.

From the annual income of the deceased, there will be statutory deduction towards income tax. The date of accident in the instant case is 17.07.2020, so, the income tax slab for the financial year 2020-2021 (Assessment Year 2021-22) was as follows:

In view of the same, after deduction of income tax, the annual income comes to Rs.8,93,481.50/- R/o Rs.8,93,482/- (10,08,545 – 1,15,063.50).

Accordingly, in light of the aforesaid discussion and in light of the judgments of the Supreme Court rendered in the matters of Pranay Sethi (supra), Sarla Verma & Ors. Vs. Delhi Transport Corporation & Ors^{11.(2009) 6 SCC 121} and Magma General Insurance Co. Ltd. v. Nanu Ram @ Chuhru Ram & Ors^{22.(2018) 18 SCC 130}, this Court is computing the compensation as below:-

In view of the aforesaid analysis, the amount of compensation of Rs.62,16,276/- awarded by the Claims Tribunal is reduced to Rs.55,25,895/-. The claimants shall be entitled to the modified amount of compensation and rest of the conditions of the impugned award shall remain intact.

In the result, the aforesaid appeals are partly allowed and the impugned award is modified to the extent as indicated herein-above.

The Registry is directed to communicate the claimants in writing “the modified amount” in this appeal as against the award made by the concerned Tribunal. The said communication be made in Hindi Deonagri language and the help of paralegal workers may be availed with a co-ordination of Secretary, Legal Aid of the concerned area wherein the claimants resides.