New India Assurance Co. Ltd. vs Sunita Devi and Others

Suresh Kait, J.—The present appeal is directed against the impugned award dated 1.10.2011 whereby the learned Tribunal has awarded a sum of Rs. 11,72,800/- as compensation. The counsel appearing on behalf of the appellant has argued the instant appeal on the following grounds:

b) Because the Tribunal has failed to appreciate that it was not a case of sole negligence of respondent No. 5 which is clear from the time and date of accident and the site plan which shows that the accident has taken place as red light and it is due the negligence of deceased himself who hit the vehicle on back side.

c) Because the Tribunal has passed the award against its own findings. On one side it is holding that the Respondents no. 1 to 4 have failed to prove the avocation of the deceased and on the other hand is taking minimum wages as monthly wages instead of notional income of Rs. 15,000.00 per annum.

As regards the issue of negligence on the part of the deceased is concerned, the learned Tribunal has recorded in its impugned award that the insurance company, i.e., appellant, was represented by a counsel who had filed his vakalatnama on 4.5.2010 but preferred to contest the case by not filing any written statement despite various opportunities granted on 10.5.2011, 1.2.2011, 20.11.2010 and 13.9.2010. Accordingly, the defence of the appellant was struck off vide order dated 26.7.2011. Moreover the investigating officer of the F.I.R. No. 58/10 P.S. NFC has also filed on record a copy of confirmation of the insurance policy by the officials of the appellant regarding vehicle bearing No. MP 07-GA-1983 which was insured for the period 29.4.2009 to 28.4.2010 vide policy No. 451900/31/09/01/00001541.

Moreover, the appellant has not examined any witness to prove that the driver of the offending vehicle was negligent but the deceased himself was negligent for the accident.

In view of the above, I do not find any substance in the grounds argued by the counsel for the appellant.

As regards the 50 per cent of the future prospects awarded by the learned Tribunal is concerned, the age of the deceased at the time of accident was 31 years. The Hon''ble Supreme Court in Rajesh and Others Vs. Rajbir Singh and Others, held as under:

Since, the Court in Santosh Devi''s case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma''s case (supra) and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years.

Accordingly, keeping in view the dictum of the Supreme Court in the case of Rajesh & Ors. (supra), I hold that the learned Tribunal has rightly awarded 50 per cent towards future prospect.

In view of the above, I do not find any discrepancy in the order of the learned Tribunal and the instant appeal is dismissed. The statutory amount shall be released in favour of the appellant.