Allahabad High Court
The Oriental Insurance Company ... vs Smt. Anju Gupta And Others on 18 February, 2021
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 1
Case :- FIRST APPEAL FROM ORDER No. - 3223 of 2010
Appellant :- The Oriental Insurance Company Ltd.
Respondent :- Smt. Anju Gupta And Others
Counsel for Appellant :- .,Arun Kumar Shukla
Counsel for Respondent :- M.N. Siddiqui,Jitendra Kumar Chakraborty
Hon'ble Vivek Agarwal,J.
1. Heard Sri Arun Kumar Shukla, learned counsel for appellant-insurance company and Sri Jitendra Kumar Chakraborty, learned counsel for respondents.
2. This appeal has been filed by the insurance company being aggrieved of award dated 23.07.2010 passed by learned Motor Accident Claims Tribunal/Special Judge under E.C. Act, Kanpur Nagar in MACP No. 101 of 2005, on two grounds namely, in the earlier award passed by learned claims tribunal in Claim Case No. 990 of 2005 between Mahabeer and the claimants in the present appeal and others, learned tribunal had recorded a finding of contributory negligence of the driver of 'Santro Car' bearing registration no. UP 78 AF 2636 and same finding should have been followed in the present case in the light of the law laid down by Allahabad High Court in case of Oriental Insurance Co. Ltd. vs. Iqbal Ahmad and others; 2008 (2) TAC 725 (All.), but tribunal erred in not recording a finding of contributory negligence in the present matter. Another ground which has taken in appeal is that tribunal has wrongly applied multiplier of 16, whereas looking to the age of the deceased, multiplier of 15 should have been applied.
3. Learned counsel for the claimants, on the other hand, submits that finding of contributory negligence will not be applicable in the present case, inasmuch as deceased Anil Kumar Gupta was a passenger in the 'Santro Car', driven by Mahabeer, who was claimant in Claims Case No. 990 of 2005. Thus, for a passenger travelling in a car, finding of contributory negligence will not be of any consequence and therefore, judgment rendered in case of Oriental Insurance Co. Ltd vs. Iqbal Ahmad and Others (supra), will not be applicable to the facts and circumstances of the present case.
4. It is also submitted that learned tribunal has not added any amount under the head of future prospects and has awarded meager amount under the head of non-pecuniary compensation, which needs to be enhanced in the light of the provisions contained in Order 41 Rule 33.
5. After hearing learned counsel for the parties and going through the record, it is apparent that finding of contributory negligence could not have been imported in the present case, inasmuch as deceased was a passenger in the 'Santro Car', whereas Mahabeer, who was claimant in Claim Case No. 990 of 2005, was driver of the 'Santro Car'. However, there is substance in the submissions put-forth by learned counsel for the appellant that taking into consideration age of the deceased, multiplier of 15 will be applicable and not that of 16, as has been applied by the learned claims tribunal.
6. Tribunal has accepted income of the deceased as Rs. 1,50,000/- (one lakh fifty thousand rupees). Deceased is survived by a wife and two children. Mother and father cannot be considered to be dependent on the deceased, therefore, 1/3rd deduction is to be made towards the amount spent by the deceased on self. After deduction, disposable income in the hands of the family will come out to Rs. 1,00,000/- (one lakh rupees). Taking into consideration age of the deceased to be 39 years and occupation of the deceased to be business, there will be an addition of 40% towards future prospects, taking total dependency to Rs. 1,40,000/- (one lakh forty thousand rupees). When multiplier of 15 is applied, then total pecuniary compensation will come out to Rs. 21,00,000/- (twenty one lakhs rupees). Over and above which, claimants are entitled to a sum of Rs. 70,000/- (seventy thousand rupees) under the head of non-pecuniary compensation, taking total compensation to Rs. 21,70,000/- (twenty one lakhs seventy thousand rupees) against a sum of Rs. 16,09,500/- (sixteen lakhs nine thousand five hundred rupees) awarded by learned tribunal. Therefore, there will be enhancement to the tune of Rs. 5,60,500/- (five lakhs sixty thousand five hundred rupees) to which claimants will be entitled.
7. In above terms appeal is allowed in part and is disposed off.
Order Date :- 18.2.2021
Vikram/-
