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2017 DIGILAW 1243 (GAU)

New India Assurance Co. Ltd. v. Joy Shree kakati

2017-09-06

MIR ALFAZ ALI

body2017
JUDGMENT & ORDER : 1. These two appeals are filed by New India Assurance Co. Ltd. and Bajaj Allianz General Insurance Co. Ltd., respectively, challenging the judgment and award dated 12.07.2013 passed by MACT, Tinsukia in Mac Case No. 29/2011. 2. Brief facts, which led to the present appeals are that on 31.03.2010, Late Dipankar Kakati was travelling in a car bearing registration No. As-23/F-1209 from Guwahati to Digboi. The car was driven by Late Dipankar Kakati, who was the owner of the vehicle. The said car driven by deceased Dipankar Kakati met with an accident after hitting against a standing truck, which was parked on the middle of road without any parking light or indicator. As a result of the accident, he sustained injuries and died. The parents of Late Dipankar Kakati filed a claim petition before the MACT, Tinsukia, and the learned Tribunal passed an award of Rs. 30,86,289/- with interest @ 6%. The learned Tribunal apportioned the liability attributing contributory negligence to the deceased to the extent of 40%. The vehicle owned and driven by deceased was insured with the appellant Bajaj Allianz General Insurance Co. Ltd. and the truck involved in the accident was insured with New India Assurance Co. Ltd. 3. Aggrieved by the judgment and award, both the Insurance Companies have preferred the respective appeals. 4. The Bajaj Allianz General Insurance Co. Ltd., appellant in MAC Appl. 221/2015 raised the following points in its appeal No. 221/2015. (i) The deceased was owner of the car and the accident having taken place for negligence of the deceased himself, the insurer of the car was not liable to pay any compensation, as under the policy, liability of the Insurance Company was to indemnify the insured in respect of claim of third party only. The deceased being owner and diver of the vehicle, insured with Bajaj Alianz General Insurnce Co. Ltd., Tribunal ought not to have held the insurer of the deceased, responsible for satisfying 40% of the award. (ii) The Tribunal wrongly deducted 1/3 of the income towards personal expenses, which as per the principle laid down in Sarala Verma (Smt.) Vs. Delhi Transport Corp. reported in (2009) 6 SCC 121 ; ought to have been 1/2 of the income, as the claim petition was filed by mother, for death of her son. 5. The appellant in MAC Appl. Delhi Transport Corp. reported in (2009) 6 SCC 121 ; ought to have been 1/2 of the income, as the claim petition was filed by mother, for death of her son. 5. The appellant in MAC Appl. 272/2014 raised the following points: (i) While assessing loss of dependency, learned Tribunal did not deduct the professional tax and income tax from the gross income of the deceased. (ii) Assessment of dependency was wrong. (iii) The accident occurred due to the fault of the deceased himself and therefore, insurer of the standing truck ought not to have been saddled with the liability to satisfy the award (iv) The claimant being parents, the Tribunal ought not to have granted consortium. 6. Learned Sr. Counsel, Mr. S. Dutta for the New India Assurance Co. Ltd., learned counsel Mr. R. Goswami for the Bajaj Allianz General Insurance Co. Ltd. and learned counsel Mr. Surajit Dutta for the respondents were heard at length. 7. Leaned counsel Mr. R. Goswami, contended that as per the policy, the insurer of the vehicle, owned by the deceased was not liable to pay any compensation, as the deceased was not a third party. As per Section 147 of the MV Act, liability of the Insurance Company is to indemnify the insured, for any claim against the owner, in respect of death or injury of a third party. Learned counsel also submitted that the Tribunal ought to have deducted 50% of the income while assessing the loss of dependency, considering the fact, that the claim petition was by mother for the death of son and there was no other dependents, but deduction of 1/3 in the instant case was improper as the deceased left no other dependent except the parents and claim petition was filed by his mother. 8. Mr. Surajit Dutta, learned counsel for the respondent/claimant vehemently arguing on the locus of both the Insurance Co. to prefer appeal, contended that the case was proceeded ex-parte against the Bajaj Allianz General Insurance Company before the Tribunal and therefore, the said company has no right to file appeal. Further contention of the learned counsel was that the New India Assurance Co. having not obtained leave under Section 170 MV Act is also not entitled to challenge the quantum of award in appeal. Further contention of the learned counsel was that the New India Assurance Co. having not obtained leave under Section 170 MV Act is also not entitled to challenge the quantum of award in appeal. In support of his submission, learned counsel placed reliance on the decision of the Apex Court in National Insurance Co. Ltd. Vs. Nicolletta Rohtagi, reported in (2002) 7 SCC 456 . Mr. Surajit Dutta also contended that although in a subsequent decision of United India Insurance Co. Ltd. Vs. Shila Datta reported in (2011) 10 SCC 509 , a contrary view was taken by the Apex Court, the decision of Nicolletta (supra) being earlier in point of time is binding. 9. The Apex Court in Nicolletta Rahtogi (supra) dealing with the right of the insurance company to prefer appeal on merit of the claim and quantum of compensation observed as under: “For the aforesaid reasons, an insurer if aggrieved against an award, may file an appeal only on those grounds and no other. However, by virtue of Section 170 of the 1988 Act, where in course of an enquiry the Claims Tribunal is satisfied that (a ) there is a collusion between the person making a claim and the person against whom the claim has been made or (b) the person against whom the claim has been made has failed to contest the claim, the tribunal may, for reasons to be recorded in writing, implead the insurer and in that case it is permissible for the insurer to contest the claim also on the grounds which are available to the insured or to the person against whom the claim has been made. Thus, unless an order is passed by the tribunal permitting the insurer to avail the grounds available to an insured or any other person against whom a claim has been made on being satisfied of the two conditions specified in Section 170 of the Act, it is not permissible to the insurer to contest the claim on the grounds which are available to the insured or to a person against whom a claim has been made. Thus where conditions precedent embodied in Section 170 is satisfied and award is adverse to the interest of the insurer, the insurer has a right to file an appeal challenging the quantum of compensation or negligence or contributory negligence of the offending vehicle even if the insured has not filed any appeal against the quantum of compensation. Sections 149, 170 and 173 are part of one Scheme and if we give any different interpretation to Section 173 of the 1988 Act, the same would go contrary to the scheme and object of the Act.” 10. A three Judges Bench of the Apex Court in Shila Datta (supra) answering the question whether insurer can contest a motor accident claim on merit in regard to the quantum in addition to the ground mentioned in Section 149(2) of the Act for avoiding liability under the policy of insurance held as under: “Therefore, where the insurer is a party- respondent, either on account of being impleaded as a party by the tribunal under section 170 or being impleaded as a party-respondent by the claimants in the claim petition voluntarily, it will be entitled to contest the matter by raising all grounds, without being restricted to the grounds available under section 149(2) of the Act. The claim petition is maintainable against the owner and driver without impleading the insurer as a party” 11. As per Shila Datta (supra) case, once the insurance company is made party respondent, irrespective of the fact, whether it is made party by the claimant or by the Tribunal under Section 170 MV Act, it can raise all grounds including the grounds, which are available to the insured. What therefore follows from Shila Datta (supra) is that, when the insurance company is made party even by the claimant, it can contest the claim raising all defence available to insured and the question of obtaining leave as contemplated in Section 170 MV Act becomes redundtant. 12. Mr. Surajit Dutta placing reliance on the decision of the Apex Court in Sundip Kumar Bafna Vs. State of Maharashtra reported in (2014) 16 SCC 623 submitted that when the co-equal Benches of equal strength of judges of the Apex court are divergence of views, the view taken in the former decision is binding and not the decision rendered subsequently by co-equal Bench. Mr. State of Maharashtra reported in (2014) 16 SCC 623 submitted that when the co-equal Benches of equal strength of judges of the Apex court are divergence of views, the view taken in the former decision is binding and not the decision rendered subsequently by co-equal Bench. Mr. Surajit Dutta, in support of his submission placed reliance on paragraph– 17 of the judgment, which is reproduced below: “17. The Constitution Bench in Union of India vs Raghubir Singh, 1989 (2) SCC 754 , has come to the conclusion extracted below: “27. What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case raising the same point subsequently before a Division Bench of a smaller number of Judges? There is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the courts sanctified by repeated affirmation over a century of time. It cannot be doubted that in order to promote consistency and certainty in the law laid down by a superior Court, the ideal condition would be that the entire Court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in Divisions, each Division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the Chief Justice, in whom such authority devolves by convention, may find most appropriate. It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the Rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges. …” 13. Countering the above submission, learned Sr. Counsel Mr. This principle has been followed in India by several generations of Judges. …” 13. Countering the above submission, learned Sr. Counsel Mr. Sisir Dutta contended that the decision rendered in Shila Datta (supra) by a three judge Bench is binding on the High Court and not the decision of earlier one rendered in Nicolletta Rohtagi (supra). In support of the submission, learned counsel placed reliance on a Division Bench judgment of this Court in MAC Appl. No. 128/2016 (Eunus Ali Vs. Branch Manager, Bajaj Allianz General Insurance Co. Ltd). The Division bench observed as under: “12. The Supreme Court in the case of M.S. Sandhu Vs. State of Punjab, (2014) 6 SCC 514 has held that in case of conflict of co-ordinate Benches of equal strength, the latter decision has to be followed specially when earlier decision rendered by co-ordinate Bench has been explained. Similar view has been taken by a five-Judge Bench of the Madhya Pradesh High Court in Jabalpur Bus Operators Vs. State of Madhya Pradesh, AIR 2003 (MP) 81 wherein it is held that in case of conflict of two Division Benches of equal strength, the decision of earlier Division Bench shall be followed except when it is explained by the latter Division Bench. In view of aforesaid enunciation of law and taking into account the principle of stare decisis, the decision rendered in the cases of Reshma Kumari and Munna Lal Jain is binding on this Court.” 14. A Full bench of Madhya Pradesh High Court in Jabalpur Bus Operators Vs. State Of M.P. & Anr. reported AIR 2003 (MP) 81 , confronted with a similar question, that in case of conflicting views between the decisions rendered by the co-equal Benches of the Apex Court, which view to be followed by the High Court as a binding precedent, held as under: “Having considered the matter with broader dimensions, we find that various High Courts have given different opinion on the question involved. Some hold that in case of conflict between two judgments on a point of law, later decision should be followed; while others say that the Court should follow the decision which is correct and accurate whether it is earlier or later. There are High Courts which hold that decision of earlier Bench is binding because of the theory of binding precedent and Article 141 of the Constitution of India. There are High Courts which hold that decision of earlier Bench is binding because of the theory of binding precedent and Article 141 of the Constitution of India. There are also decisions which hold that Single Judge differing from another Single Judge decision should refer the case to Larger Bench, otherwise he is bound by it. Decisions which are rendered without considering the decisions expressing contrary view have no value as a precedent. But in our considered opinion, the position may be stated thus- With regard to the High Court, a Single Bench is bound by the decision of another Single Bench. In case, he does not agree with the view of the other Single Bench, he should refer the matter to the Larger Bench. Similarly, Division Bench is bound by the judgment of earlier Division Bench. In case, it does not agree with the view of the earlier Division Bench, it should refer the matter to Larger Bench. In case of conflict between judgments of two Division Benches of equal strength, the decision of earlier Division Bench shall be followed except when it is explained by the latter Division Bench in which case the decision of later Division Bench shall be binding. The decision of Larger Bench is binding on Smaller Benches. In case of conflict between two decisions of the Apex Court, Benches comprising of equal number of Judges, decision of earlier Bench is binding unless explained by the latter Bench of equal strength, in which case the later decision is binding. Decision of a Larger Bench is binding on smaller Benches. Therefore, the decision of earlier Division Bench, unless distinguished by latter Division Bench, is binding on the High Courts and the Subordinate Courts. Similarly, in presence of Division Bench decisions and Larger Bench decisions, the decisions of Larger Bench are binding on the High Courts and the Subordinate Courts. No decision of Apex Court has been brought to our notice which holds that in case of conflict between the two decisions by equal number of Judges, the later decision in binding in all circumstances, or the High Courts and Subordinate Courts can follow any decision which is found correct and accurate to the case under consideration. No decision of Apex Court has been brought to our notice which holds that in case of conflict between the two decisions by equal number of Judges, the later decision in binding in all circumstances, or the High Courts and Subordinate Courts can follow any decision which is found correct and accurate to the case under consideration. High Courts and Subordinate Courts should lack competence to interpret decisions of Apex Court since that would not only defeat what is envisaged under Article 141 of the Constitution of India but also militate hierarchical supremacy of Courts. The common thread which runs through various decisions of Apex Court seems to be that great value has to be attached to precedent which has taken the shape of rule being followed by it for the purpose of consistency and exactness in decisions of Court, unless the Court can clearly distinguish the decision put up as a precedent or is per incuriam, having been rendered without noticing some earlier precedents with which the Court agrees. Full Bench decision in Balbir Singh's case (supra) which holds that if there is conflict of views between the two co-equal Benches of the Apex Court, the High Court has to follow the judgment which appears to it to state the law more elaborately and more accurately and in conformity with the scheme of the Act, in our considered opinion, for reasons recorded in the preceding paragraph of this judgment, does not lay down the correct law as to application of precedent and is, therefore, over-ruled on this point.” 15. Although, with regard to right to file appeal by Insurance Company, the Apex court in Nicolletta Rohtagi (supra) expressed somewhat different view, in the subsequent decision by three Judges Bench in Shilla Datta (supra), the Apex Court considered and explained the decision of Nicolletta Rohtagi (supra) in detail and referred certain issues to larger Bench. However, so far the question with regard to right of Insurance Company to file appeal taking the ground in addition to Section 149 (2) MV Act, the Apex Court clearly held that once the insurance company is made a party respondent, irrespective of obtaining any leave under Section 170 MV Act, can contest the claim and prefer appeal taking all grounds available to the insured, besides the statutory defence under Section 149(2) MV Act. 16. 16. In view of the above situation, when the Apex Court in Shila Datta (supra) explained the earlier decision in Niccolletta Rohtagi (supra) and decided the question as indicated above in favour of the insurer, I am of the view, that in view of the decision of the Division Bench of this Court and also the principle laid down by the Full Bench of Madhya Pradesh High Court, the decision rendered by three judges Bench of Apex Court in Shilla Datta (supra) subsequently, is binding on this Court. Be that as it may, while going through the record of the Tribunal, I find that the Bajaj Allianz General Insurance Company prayed for leave under Section 170 of the MV Act and the Tribunal allowed the Insurance Company by order dated 01.06.2012 to raise all defence, which could be raised by insured in addition to defence available under Section 149(2). Therefore, the question raised by Mr. Surajit Dutta challenging the right of the insurance company to prefer appeal, is redundant, so far the Bajaj Alliance General Insurance Co. Ltd. is concerned. So far the New India Assurance Co. is concerned, as per Shila Datta (supra) case, the New India Assurance Co. having been impleaded as a party respondent, obviously has the right to appeal. In that view of the matter, I do not find any force in the submission of the learned counsel Mr. Surajit Dutta that the appeal filed by the Insurance Companies are not maintainable. 17. Next point raised by Surajit Dutta was that the Bajaj Allianz General Insurance Company is debarred from raising any defence on the basis of the policy, in absence of evidence adduced by the Insurance Company inasmuch as, the policy was not proved by the insurance company. To buttress the submission, Mr. Dutta placed reliance on a decision of Patna High Court in Siai Sinha Vs. Shivadhari Sinha & Ors. reported in AIR 1972 Patna 81. There is no denial, that Bajaj Allianz General Insurance Company did not file written statement and for that matter, no evidence was also adduced, however, it appeared subsequently and contested the case. 18. It transpires from the record, that the policy under which the vehicle of the deceased was insured has been proved as Ext.10 by the claimant himself. There is no denial, that Bajaj Allianz General Insurance Company did not file written statement and for that matter, no evidence was also adduced, however, it appeared subsequently and contested the case. 18. It transpires from the record, that the policy under which the vehicle of the deceased was insured has been proved as Ext.10 by the claimant himself. Since the policy has been proved and brought on evidence, it is immaterial who has adduced such evidence and proved the policy. Since there is evidence on record, both the parties can rely upon such evidence, as law never preclude any party from relying on the evidence adduced by the opposite party. Therefore, there is no bar on the part of the Insurance Company in replying upon such documentary evidence, though adduced by the claimant. The insurance policy (Ext.10) transpires that it was a package policy for private vehicle. 19. Therefore, there is no bar on the part of the Insurance Company in replying upon such documentary evidence, though adduced by the claimant. The insurance policy (Ext.10) transpires that it was a package policy for private vehicle. 19. Section 147 of the MV Act reads as under: “147 Requirements of policies and limits of liability.— (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which— (a) is issued by a person who is an authorised insurer; and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section(2)— (i) against any liability which may be incurred by him in respect of the death of or bodily 27 [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: Provided that a policy shall not be required— (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee— (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. Explanation.—For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:— (a) save as provided in clause (b), the amount of liability incurred; (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. (3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases. (4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made there under is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe. (5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.” 20. It would appear from the provision of Section 147 MV Act, that under the policy, liability of Insurance Company is to indemnify the insured owner in respect of death or injury of any third party, which also necessarily included certain categories of employees mentioned in Clause (a), (b) and (c) of the proviso to sub-section (1) of Section 147 MV act. It is also settled position of law, that there are two types of insurance policy, one is statutory policy and the other is contractual policy. Under statutory policy, liability of the Insurance Company is limited to what is laid down in Section 147 of the MV Act. Under Section 147 of the MV Act, Insurance Company has no liability to pay any compensation in respect of death or injury of the owner/insured himself, unless there is some contract between the insurer and the insured to that effect. It is abundantly clear from the provision of Section 147 MV Act and also Section 163-A or 140 MV Act that the liability to pay compensation to the victim of motor vehicle accident is basically on the owner of the vehicle, which the insurer is required to indemnify by virtue of the contract of the policy. The Apex Court in New India Assurance Co. Ltd. Vs. Prabha Devi & Ors. reported in (2013) 14 SCC 719, the Apex Court dealing with the liability of the insurer in respect of death or injury of the insured held as under: “8. We have perused the judgment of this Court in the case of Dhanraj Supra. In that case, the appellant who was the insurer was travelling in the insured vehicle, which met with an accident. In the accident, the appellant as well as the other passengers received injuries. A number of claim petitions came to be filed. The appellant who was the insurer also filed a claim petition. The MACT held the driver of the Jeep responsible for the accident. In the accident, the appellant as well as the other passengers received injuries. A number of claim petitions came to be filed. The appellant who was the insurer also filed a claim petition. The MACT held the driver of the Jeep responsible for the accident. In all the claim petitions filed by the other passengers, MACT directed that the appellant (the owner) as well as the driver and the Insurance Company were liable to pay compensation. Furthermore, in the claim petition filed by the appellant, the MACT directed the driver and the Insurance Company to pay compensation to the appellant. The aforesaid finding of the MACT was upheld by the High Court in the appeal filed by the Insurance Company. The Insurance Company was, in appeal before this Court challenging the judgment of the High Court awarding compensation to the owner of the insured vehicle. Taking into consideration the provision contained in Section 147 of the Act, this Court observed as follows:- “8. Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorised representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle. 9. In the case of Oriental Insurance Co. Ltd. versus Sunita Rathi it has been held that the liability of an insurance company is only for the purpose of indemnifying the insured against liabilities incurred towards a third person or in respect of damages to property. Thus, where the insured i.e. an owner of the vehicle has no liability to a third party the insurance company has no liability also. 10. In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that the premium of Rs.4989 paid under the heading “Own damage”, the words “premium on vehicle and non-electrical accessories” appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case there is no such insurance.” 9. In view of the aforesaid ratio of law, the claim made by the respondents could not have been allowed. Consequently, Civil Appeal No. 479 of 2007 is allowed. The impugned Award as well as the impugned judgment of the High Court are set aside.” 21. The perusal of the policy (Ext.10) shows, that the deceased as owner of his vehicle, paid an extra premium for personal accident coverage and therefore, the liability of the insurer in the instant case for death or injury of the owner, could not be beyond what is provided in the policy as per contract between the insurer and insured. Since the deceased himself was the owner of the vehicle insured with Bajaj Allianz General Insurance Co. Ltd, the Bajaj Allianz General Insurance Co. Ltd is not liable to pay any compensation as directed by the Tribunal for the simple reason, that as per policy and also as per the provision of Section 147 of the MV Act, Bajaj Allianz General Insurance Co. Ltd has no liability for the death or injury of the owner, except, what is provided in the policy under personal accident coverage. 22. Leaned counsel for both the Insurance Company submitted that while calculating the loss of dependency, Tribunal deducted 1/3 of the income as future prospect, whereas, as per the principle laid down in Sarla Verma (supra) such deduction for personal expenses ought to have been 1/2 of the income. The Apex Court in Sarla Verma (supra) held, that when deceased is bachelor and claimants are parents, normally 50% of the income is to be deducted as personal and living expenses. However, where the family of the bachelor is large and dependent on the income of the deceased, the deduction on personal expenses may be restricted to 1/3 and contribution of the family shall be treated as 2/3. In the instant case, evidently there is no other dependent except the mother of the deceased and therefore, as per the principle laid down in Sarla Verma (supra), deduction ought to have been made 50% towards personal expenses of the deceased. In the instant case, evidently there is no other dependent except the mother of the deceased and therefore, as per the principle laid down in Sarla Verma (supra), deduction ought to have been made 50% towards personal expenses of the deceased. What is to be noted in the instant case is that Tribunal applied multiplier 11, with reference to the age of the claimant, whereas, it is now settled principle of law, that multiplier shall be with reference of the age of the deceased and not with reference to the age of the parents. Learned Tribunal seems to have fallen in error by applying multiplier 11, which ought to have been 16 with reference to the age of the deceased. Had the Tribunal took the proper multiplier 16, in that case, even after deduction of 50% towards personal expenses, loss of dependency would have remained almost same. The Apex Court in Ranjana Prakash And Ors vs The Divisional Manager And Anr reported in (2011) 14 SCC 639 observed that irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation i.e. award is just and reasonable. The only embargo put on such obligation of the High Court in determining just compensation is that in an appeal by insurance company for reduction of compensation, enhancement of compensation is not permissible without appeal by the claimant. Taking note of the fact that the Tribunal wrongly took a lower multiplier, I am not inclined to interfere with the decision of the Tribunal with regard to deduction towards personal expenses for the reasons, that had the Tribunal applied proper multiplier, even after deduction of 50%, loss of dependency would have been almost the same as has been assessed by the Tribunal after deduction of 1/3 of the income towards personal expenses. 23. Mr. Sisir Dutta, leaned Sr. Counsel, refereeing to the evidence of CW-4 contended that the accident occurred due to rash & negligent driving of the deceased and therefore, the owner insurer of the truck ought not to have been held liable. The claimant examined 4 witnesses, out of which, CW-2 was the eye witness, who was travelling in the vehicle with the deceased. Counsel, refereeing to the evidence of CW-4 contended that the accident occurred due to rash & negligent driving of the deceased and therefore, the owner insurer of the truck ought not to have been held liable. The claimant examined 4 witnesses, out of which, CW-2 was the eye witness, who was travelling in the vehicle with the deceased. The CW-2 categorically stated that the truck was parked in the middle of the road without any parking light and for negligent parking of the truck in the middle of the road, the accident occurred. Accident Information Report, Ext.1 as well as the charge sheet, Ext. 3 shows that the accident occurred due to fault of the driver of the truck. CW-4 being police officer, who held preliminary enquiry of the case, stated categorically that the truck was parked in the middle of the road. However, he further stated that there were 12 fts. space on the side of the divider and according to him, had the driver of the Santro car drove the vehicle in a moderate speed, accident could have been avoided. This part of the statement of CW-4 appears to be his opinion, whch does not carry any evidentiary value. Apparently, CW-4 was not an eye witness and as such he had no personal knowledge as to how the vehicle was driven or how the accident occurred. But the categorical evidence of the eye witness, CW-2 that the truck was parked in the middle of the road without any back light, because of which the accident occurred, supported by the documentary evidence being the charge sheet, left no room for any speculation as to who was at fault for the accident. 24. However, considering the facts and circumstances of the case and the totality of the evidence, learned Tribunal in its wisdom apportioned the liability attributing same amount of contributory negligence to the deceased, I do not find any fault with such finding of the Tribunal in apportioning the liability fixing 40% contributory negligence on the deceased, inasmuch as, the claimant or the insurer of the Santro car has not challenged the finding of the Tribunal with regard to apportionment of the liability. 25. The next point raised by learned Sr. Counsel Mr. S. Dutta is that while assessing the income, the Tribunal did not deduct income tax. 25. The next point raised by learned Sr. Counsel Mr. S. Dutta is that while assessing the income, the Tribunal did not deduct income tax. Referring to the decision of the Apex Court in Sarla Verma (supra), learned counsel submits that only net income or the ‘take home pay’ after deduction of tax is required to be taken into consideration for purpose of assessing loss of dependency. The claimant has stated that salary of the deceased, who was a Mechanical Engineer was Rs. 38,438/- and proved a salary certificate issued by his employer as Ext.11. The author of the Ext.11 was also examined, but during cross examination of the author of the Ext.11, no question was put to the author of the certificate, whether the amount of salary mentioned in Ext.1 was the ‘take home pay’ after deducting tax etc. or not. The insurance company has also not adduced any evidence that the salary shown in the Ext.11 and also deposed by the claimant was not the net pay after deducting income tax. In absence of such evidence, I am of the view that no deduction towards income tax could be made. Another point raised by Mr. S. Dutta referring to the cross examination of CW-1, that deceased used to send Rs. 7000/- to her every month by Money Order. Learned counsel Mr. S. Dutta contended that this Rs. 7000/- was the only contribution to the family and therefore loss of dependency ought to have been assessed on the basis of the said contribution of Rs. 7000/- per month only. I do not find any force in this submission of the learned counsel, for the simple reason, that only because the deceased used to send Rs. 7000/- per month by Money Order that itself would not necessarily mean, that the deceased was not looking after his parents or did not contribute to the family. 26. In view of the forgoing discussions, I am of the view that the compensation determined by the Tribunal in the instant case warrant no interference. However, since the deceased also contributed to the accident to the extent of 40% as decided by the Tribunal, the claimant cannot get any compensation for the wrong done by deceased himself and therefore, the claimant shall be entitled only to 60% of the compensation determined by the Tribunal to be satisfied by the New India Assurance Co. Ltd.. However, since the deceased also contributed to the accident to the extent of 40% as decided by the Tribunal, the claimant cannot get any compensation for the wrong done by deceased himself and therefore, the claimant shall be entitled only to 60% of the compensation determined by the Tribunal to be satisfied by the New India Assurance Co. Ltd.. The accident having taken place due to contributory negligence of the deceased, who was owner of the vehicle insured with Bajaj Allianz General Insurance Co. Ltd., Bajaj Allianz General Insurance Co. Ltd. cannot be saddled with the responsibility to satisfy the 40% of the award as directed by the Tribunal, as one cannot get compensation for his own fault in claim under Section 166 MV Act. That apart, deceased not being third party, so far Bajaj Allianz Insurance Co. is concerned, the insurer of the deceased/owner is not liable to pay compensation for the death of the owner/insured. 27. With the above modification in the award with regard to liability of the appellant Bajaj Allianz General Insurance Co. Ltd, the appeal filed by Bajaj Allianz General Insurance Co. Ltd is allowed and the appeal filed New India Assurance Co. Ltd. is dismissed. 28. Send down the LCR.