The court emphasized the importance of raising relevant pleas before the Tribunal and applied legal principles from case laws to determine the appropriate compensation.

Judgment

Mrs. Alka Sarin, J.

This common order will dispose off both the above captioned appeals being FAO-3324-2012 filed by the Insurance Company and FAO-4025-2012 filed by the claimants challenging the award dated 19.12.2011 passed by the Motor Accident Claims Tribunal, Patiala (hereinafter referred to as the ‘Tribunal’).

2. Since the facts, as recorded in the impugned award passed by the Tribunal, are not in dispute, the same are not being reproduced herein for the sake of brevity.

FAO-3324-2012

3. The Insurance Company has preferred the present appeal aggrieved by the award to the extent that it was a case of contributory negligence and that since it was a head on collision, 50% of the amount of compensation awarded by the Tribunal ought to have been deducted towards contributory negligence.

4. Learned counsel for the Insurance Company has stated that since it was a head on collision, it was a clear case of contributory negligence and hence the Tribunal has erred in not deducting 50% of the amount of compensation awarded by it towards contributory negligence.

5. Per contra learned counsel for the claimants has contended that in the present case the argument qua contributory negligence was not raised before the Tribunal and that the driver even did not step into witness-box in the present case and hence there is no question of contributory negligence.

6. I have heard learned counsel for the parties.

7. In the present case the plea qua contributory negligence was not raised by the Insurance Company before the Tribunal. There is not a whisper in the impugned award passed by the Tribunal qua the plea of contributory negligence having been raised. Further still, the driver, who could have possibly deposed as to whether it was a case of contributory negligence, did not step into the witness-box.

8. In view of the above the appeal (FAO-3324-2012) filed by the Insurance Company Bajaj, being devoid of any merits, is dismissed.

9. The present appeal has been filed by the claimants aggrieved by the quantum of compensation awarded by the Tribunal.

10. The Tribunal awarded the following compensation :

11. Learned counsel for the claimants would contend that the Tribunal has taken the salary of the deceased as Rs.15,769/- per month, rounded off to Rs.15,770/- per month, though his salary was Rs.23,106/-. Learned counsel for the claimants would further contend that the Tribunal has deducted 30% from the salary of the deceased towards income tax, however, the income tax slab at the relevant point of time was 10%. It is further the contention that the amount awarded under the heads loss of estate, funeral expenses and loss of consortium is also on the lower side. In support of his contention learned counsel for the claimants has relied upon judgments of the Hon’ble Supreme Court in the cases of National Insurance Company Ltd. vs. Pranay Sethi & Ors. (2017) 16 SCC 680, Magma General Insurance Company Limited vs. Nanu Ram alias Chuhru Ram & Ors. (2018) 18 SCC 130 and N. Jayasree & Ors. vs. Cholamandalam M.S General Insurance Company Ltd. 2021 (4) RCR (Civil) 642.

12. Per contra learned counsel for the Insurance Company has contended that sufficient amount of compensation has been awarded to the claimants and there is no scope of any further enhancement. Learned counsel for the Insurance Company has also contended that income tax from the salary of the deceased ha