NATIONAL INSURANCE COMPANY Vs. VARSHABEN BHARATBHAI GOHIL

JUDGEMENT

(1.) THE appeal was heard at the admission stage and due to lack of necessary material with learned counsel for the appellant, Mr.Dakshesh Mehta, hearing was adjourned for allowing him the time to collect necessary instructions and papers for fullfledge arguments in the appeal. In the meantime, respondents in the appeal have filed their cross objection, and the contesting respondent having appeared, the appeal and cross objection are, by consent, taken up for final hearing and disposal. For the sake of convenience, the appellantinsurance company is addressed as appellant herein and the respondentclaimants in the appeal are addressed as the claimants.

(2.) THE relevant facts of the case are that the claimants had claimed compensation of Rs.46.4 Lacs on account of death of Shri Bharatbhai B. Gohil, who died in the accident which took place on 26.5.2006 on account of collision of his car with a stationary truck on the highway near Dhrol, DistrictJamnagar. The accident happened at around 8.15 p.m. Complaint in respect of the accident was registered and charge sheet for offences punishable under Sections 279, 337, 338 and 304A of the Indian Penal Code and Sections 177 and 188 of the Motor Vehicles Act has been submitted against driver of the truck.

(3.) AFTER an application for condonation of delay, which was granted, and payment of nearly Rs.35,000/ for Court fees, all that was argued for the appellant was that the tribunal had failed to consider the income tax which was required to be deducted from the gross income of the deceased and that the tribunal had not considered the plea of contributory negligence of driver of the vehicle in which the victim was travelling, insofar as the Maruti car had dashed with a stationary truck on the left hand side of the road. Learned counsel, Mr.Dakshesh Mehta, appearing for the appellant relied upon recent decision of the Apex Court in Shayamwati Sharma and Others v. Karam Singh and Others [(2010) 12 SCC 378] to submit that when income of the deceased was above the range which was exempt from tax, appropriate deduction has to be made in respect of the tax liability. Learned counsel relied upon Form No.16A at Exh.83 which is a certificate of deduction of tax at source in respect of income of the deceased from May 2005 to March 2006 and it showed deduction of income tax to the tune of Rs.21,420/ from the gross salary of Rs.30,000/ upto September 2005 and Rs.40,000/ for the remaining period of the year. It was, however, conceded that there was no evidence and not even a question asked in the cross examination of the claimants about actual tax liability borne by the deceased after other permissible deductions and legal tax planning. Learned counsel Mr.Mehta also relied upon decision of the Apex Court in Raj Rani and Others v. Oriental Insurance Company Limited and Others [(2009) 13 SCC 654] in support of the submission that some amount of negligence on the part of deceased could not be ruled out and at least 10% of contributory negligence was required to be attributed to the driver of the vehicle in which the victim was travelling.