The court emphasized the importance of established facts, waiver, and estoppel in rejecting the plea of contributory negligence. It upheld the assessment of income and application of the multiplier for compensation based on relevant case law and legal provisions.

RAJIV SHARMA, ANIL KUMAR, JJ.

1. Heard Mrs. Alka Verma, learned counsel for the appellant and Mr. Rajendra Jaiswal, learned counsel for the respondents.

2. By means of the present first appeal from order, the judgment and award dated 13.8.2007 passed by the Motor Accidents Claims Tribunal/Additional District Judge, Lucknow in Claim Petition No. 510/2004, Prem Chandra Bajpai v. Mohd. Ateeq, is under challenge.

3. In brief, the facts of the present appeal are that on 10.11.2004 when Nirmala Bajpai was standing near the main gate of Red Cross Hospital, Lucknow and proceeded towards her home, a Tempo having registration No. UP 32-Z 8352 due to rash and negligent driving of the driver of Tempo had hit Nirmala Bajpai, as a result of which she sustained grievous injuries and was hospitalised in Balrampur Hospital where she died on the same day. In this regard, first information report was also lodged under sections 279/338/304-A, Indian Penal Code in the concerned police station.

4. Thereafter, in view of the above said facts, a claim petition was filed by Prem Chandra Bajpai, husband of the deceased Nirmala Bajpai and his two sons and one daughter on the ground that at the time of accident Nirmala Bajpai was 53 years of age and was holding the post of ANM in Department of Child and Maternity of Red Cross Hospital, Lucknow and her salary at the time of accident was Rs. 9,330 per month for a compensation of Rs. 3,00,000 which was registered as Claim Petition No. 510 of 2004 and in the said claim application Mohd. Ateeq, the owner of the Tempo and National Insurance Co. Ltd., Lucknow, who was the insurer, were impleaded as opposite party Nos. 1 and 2.

5. After considering the relevant facts and circumstances of the case and on the basis of the pleadings and documentary evidence available on record, the Tribunal while disposing the claim petition by judgment and award dated 13.8.2007 awarded a compensation amounting to Rs. 7,56,548 along with 7 per cent interest to the heirs of the deceased from the date of filing of the application.

6. Aggrieved by the said award dated 13.8.2007, National Insurance Co. Ltd. has challenged the same before this court u/s 173 of the Motor Vehicles Act, 1988, by way of present first appeal from order.

7. Mrs. Alka Verma, learned counsel appearing on behalf of the appellant, has assailed the impugned award passed by the Tribunal on the following grounds:

(a) There is contributory negligence in the present case due to which accident has taken place as such the award in question passed by the Tribunal is not sustainable.

(b) While passing the award, the Tribunal had erroneously assessed the actual income of the deceased as Rs. 1,02,552 after deducting 1/3rd amount of actual income for her personal expenses and applied the multiplier of 11.

8. She has further submitted that the Tribunal should have assessed the income after deducting 50 per cent of her personal expenses and in support of her submission she has placed reliance on the following cases:

(1) Oriental Insurance Co. Ltd. Vs. Sanjiv Jain and Another, (2003) 1 AWC 280

(2) State of Haryana and Another Vs. Jasbir Kaur and Others, (2003) 7 SCC 484

(3) Bangalore Metropolitan Transport Corpn. v. Padma 2009 ACJ 1336 (SC).

(4) Syed Basheer Ahamed and Others Vs. Mohd. Jameel and Another, (2009) 2 SCC 225

9. On the other hand, learned counsel for the respondents submits that so far as the plea of contributory negligence which was taken by the learned counsel for the appellant is concerned, is not sustainable as no such plea was taken in this regard before the Tribunal and now at this stage learned counsel for the appellant cannot take this plea before this court.

10. Further, in rebuttal to the next argument made on behalf of the appellant, the learned counsel for the respondents has submitted that the court below had correctly assessed the income of the deceased as Rs. 1,02,552 after deducting 1/3rd of the income as personal expenses and applied the multiplier of 11