JUDGMENT : 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. 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. 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. It was further submitted that before Tribunal, it was categorically proved on the basis of the evidence on record that at the time of the accident her daughter Deep Shikha was studying in Amity College and two sons, who were unemployed and were also dependent upon the salary of her mother. He further submits that as the age of Nirmala Bajpai was 53 years at the time of accident as such multiplier of 11 which is adopted by the Tribunal is in accordance with the Second Schedule to the Motor Vehicles Act, 1988 is correct as such the appeal filed by the appellant is liable to be dismissed having no merit. 11. We have heard learned counsel for the parties and perused the record. 12. The first contention which has been raised by the learned counsel for the appellant that there was contributory negligence on the part of the deceased Nirmala Bajpai at the time of accident which took place on 10.11.2004 so the Tribunal had erred in awarding the compensation on the basis of sole responsibility and negligence on the part of Tempo driver, is totally incorrect and the submission is also not in accordance with the facts and circumstances of the case as in the present case factum of accident was not disputed and from the documents on record, it was clearly established that the deceased Nirmala Bajpai on 10.11.2004 when the accident took place, was standing at the main gate of Red Cross Hospital, Lucknow in order to proceed for her home, at that relevant point of time due to rash and negligent driving of Tempo driver an accident had occurred as a result of which she died. 13. 13. Moreover in regard to rash and negligent driving of Tempo driver, issue No. 1 was framed by the Tribunal and while adjudicating the same after taking into account the cogent evidence both oral and documentary, learned Tribunal had given a categorical finding of fact that due to rash and negligent driving of Tempo driver the accident took place so the plea which was taken by learned counsel for the appellant in respect to the contributory negligence does not hold the field in the present case. Further, even otherwise the said plea was also not taken before the Tribunal, now at this stage in view of the principle of waiver and estoppel the appellant cannot take said plea for the first time before this court. Accordingly, the argument as advanced by the learned counsel for the appellant in respect to point No. 1 has got no force and is rejected. 14. Next contention as raised by the learned counsel for the appellant that Tribunal had erroneously assessed the annual income of the deceased as Rs. 1,02,552 after deducting 1/3rd towards her personal expenses and applied the multiplier of 11 rather the Tribunal should have deducted 50 per cent of the annual income as her personal expenses then assessed the annual income of the deceased is also a misconceived argument because in the present case issue No. 4 had been framed by the Tribunal which was as follows: Kya yachigan pratikar dhanrashi pane ke adhikari hai yadi ha to kitni event kis pachkar se? 15. The Tribunal at the time of adjudicating the issue No. 4 had given a finding of fact that after necessary deduction from the salary of the deceased payable to her per month the amount which she carries to her home per month was Rs. 8,546 and after multiplying the said amount by 12, the income of the deceased was calculated as Rs. 1,02,552 per year and out of the said amount, the Tribunal had deducted 1/3rd amount for personal use and expenses of the deceased, i.e., Rs. 34,184 only thereafter the Tribunal had held that remaining 2/3rd amount, i.e., Rs. 68,368 was spent by the deceased towards her dependants. 1,02,552 per year and out of the said amount, the Tribunal had deducted 1/3rd amount for personal use and expenses of the deceased, i.e., Rs. 34,184 only thereafter the Tribunal had held that remaining 2/3rd amount, i.e., Rs. 68,368 was spent by the deceased towards her dependants. The Tribunal after taking into consideration the said fact applied the multiplier of 11 as provided in Second Schedule to the Motor Vehicles Act as the age of the deceased at the time of the accident was 53 years, the compensation was calculated amounting to Rs. 7,52,048 and was awarded by the award dated 13.8.2007. The said compensation which was awarded by the Tribunal was in accordance with law as laid down by Hon'ble Supreme Court in the cases of (i) General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, (1994) 2 SCC 176 (ii) U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, (1996) 4 SCC 362 and (iii) Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 . 16. In the case of Oriental Insurance Co. Ltd. Vs. Sanjiv Jain and Another, (2003) 1 AWC 280 in which this court has held as under: (13)...Where the wife is an earning member of her family, getting income much less as compared to the income of her husband, it is not unreasonable to hold that she in the normal course would have contributed to the household expenditure about 50 per cent of her income and the remaining amount would have been utilized by her for expenditure on herself. The contention of the learned counsel for the appellants that only 1/3rd of the amount of the income should have been excluded and not one-half, taking into consideration the peculiar facts and circumstances of this case is not at all acceptable. 17. In the present case, the Tribunal after taking into account the fact that 2/3rd of the income of the deceased was spent by her on sons and daughter for their uplift and studies as such in view of the fact of the present case, the judgment relied by the learned counsel for the appellant is not applicable. 18. In the case of State of Haryana and Another Vs. 18. In the case of State of Haryana and Another Vs. Jasbir Kaur and Others, (2003) 7 SCC 484 Hon'ble Supreme Court has held as under: Claims Tribunal while awarding compensation has to determine the amount which is to be in the real sense 'damages', which in turn appears to it to be 'just and reasonable'. Though compensation for loss of limbs or life cannot be weighed in golden scales but at the same time compensation is not expected to be windfall for the victim. The courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just and which would depend upon particular facts and circumstances and attending peculiar or special features, if any. There can be no golden rule applicable to all cases for measuring the value of human life or limb. Measure of damages cannot be arrived at by precise mathematical calculation. Every method or mode adopted for assessing compensation has to be considered in background of 'just' compensation which is the pivotal consideration and requires judicious approach. The expression 'just' denotes equitable, fairness, reasonableness and non-arbitrariness. 19. In the case of Bangalore Metropolitan Trans. Corpn. v. Padma 2009 ACJ 1336 (SC), Hon'ble Supreme Court has held as under (para 7): Coming to the question as to whether the multiplier adopted is on the higher side, it appears that deceased was aged about 53 years on the date of accident. That being so the appropriate multiplier would be 8. On that basis loss of dependency comes to Rs. 7,83,296. Since there is no challenge regarding amount awarded under conventional heads, the amount awarded by the Claims Tribunal and affirmed by the High Court, i.e., Rs. 70,000 is maintained. The compensation is fixed at Rs. 8,53,296. Amount shall carry interest at the rate of 6 per cent per annum from the date of the claim. While issuing notice on 10.7.2008 a sum of Rs. 7,00,000 was directed to be deposited which it is stated has been deposited. The balance amount in terms of the present judgment shall be deposited within six weeks with the concerned M.A.C.T. The mode of withdrawal including the amount to be kept in fixed deposit shall be fixed by the Tribunal. 20. 7,00,000 was directed to be deposited which it is stated has been deposited. The balance amount in terms of the present judgment shall be deposited within six weeks with the concerned M.A.C.T. The mode of withdrawal including the amount to be kept in fixed deposit shall be fixed by the Tribunal. 20. The above said judgments which have been relied upon by the learned counsel for the appellant are not applicable to the facts and circumstances of the present case as such the appellant cannot derive any benefit from the said judgment. 21. In the case of Syed Basheer Ahamed and Others Vs. Mohd. Jameel and Another, (2009) 2 SCC 225 Hon'ble Supreme Court has held as under: (9)...Similarly, although the Act is a beneficial legislation, it can neither be allowed to be used as a source of profit, nor as a windfall to the persons affected nor should it be punitive to the person(s) liable to pay compensation. The determination of compensation must be based on certain data, establishing reasonable nexus between the loss incurred by the dependants of the deceased and the compensation to be awarded to them. In nutshell, the amount of compensation determined to be payable to claimant(s) has to be fair and reasonable by accepted legal standards. 22. The law as laid down by Hon'ble Apex Court in the case of Syed Basheer Ahamed and Others Vs. Mohd. Jameel and Another, (2009) 2 SCC 225 , supports the case of the respondents. 23. Further, the findings which were recorded by the Tribunal while awarding the compensation to the claimants of the deceased were based on the findings of fact and it is settled proposition of law that this court while exercising the power of judicial review in its appellate jurisdiction can only set aside the findings of fact recorded by the Tribunal when the same is contrary to law and perverse in nature. However, in the present case, said two conditions do not exist so the second submission made by learned counsel for the appellant has got no force and is rejected. For the foregoing reasons, the appeal lacks merit and is dismissed. No order as to costs.