JUDGMENT 1. This appeal is directed against the judgment and award dated 13.9.1995 passed by Motor Accidents Claims Tribunal, Bhilwara (hereinafter referred to as the Tribunal'), whereby the learned Tribunal awarded a sum of Rs. 1,11,000/- as compensation against the respondents No. 1 and 2, the owner and driver of the vehicle involved in the accident jointly and severally and dismissed the claim against respondent No. 3 National Insurance Company Ltd. 2. Being aggrieved and dissatisfied by the award Impugned, the appellant-claimants (hereinafter referred to as 'the claimants') came in appeal o before this Court. 3. Brief facts of the case which are necessary for the decision of this appeal are that; the claimants filed a claim petitioner before the Tribunal for compensation of Rs. 19,91,500/-. The cese of the claimants as set up before the Tribunal is that on 24.4.1992 at about 3.00 p.m., deceased Devi Lal was walking by the side of rocky way, at that relevant time, a tractor bearing No. RJ06/R-0119 which was driven rashly and negligently by its driver respondent No. 2 Gulab Raigor, suddenly went over the rock and turned turtle and fell on this, the deceased Devi Lal who was walking by the side of rocky way. The said Tractor turned turtle and fell on Devi Lal. Due to this accident, Devi Lal sustained injuries on his person and ultimately succumbed to injuries. The tractor was owned by respondent No. 1 and his brothers namely Rupa and Ladu Lal jointly and was driven by respondent No. 2. At the relevant time, the tractor was insured with respondent No. 3. It was averred that the deceased Devi Lal was 25 years of age and he used to earn Rs. 22,000/- to 23,000/- per annum as such his monthly income was Rs. 1850/-. He was vegetables vendor and in addition to this, he used to supervise the loading and unloading of the trucks in mines. It was also pleaded that widow of deceased, his three children and parents were fully dependent on the deceased. 22,000/- to 23,000/- per annum as such his monthly income was Rs. 1850/-. He was vegetables vendor and in addition to this, he used to supervise the loading and unloading of the trucks in mines. It was also pleaded that widow of deceased, his three children and parents were fully dependent on the deceased. The driver and owner of the said tractor though served but did not file their written statements, however, a written statement was filed by respondent No. 3 (original non-applicant No. 5) National Insurance Company, wherein, a specific plea was raised that the deceased was travelling in the tractor by sitting over its mudguard and, therefore, the respondent Insurance Company is not liable for the compensation. The Tribunal framed as many as 3 issues and tried the case. While deciding issue No. 1, Tribunal came to the conclusion that the said accident was a result rash and negligent driving of the said tractor by its driver respondent No. 2 Gulab Raigor. While deciding the issue No. 2, the Tribunal held that the deceased was sitting over the mudguard of the said tractor and, therefore, Insurance Company is not liable and while deciding the issue of quantum of compensation, the Tribunal assessed and awarded a sum of Rs. 1,11,000/- as compensation against the respondents No. 1 and 2. 4. I have heard the learned counsel for the parties, perused the record. Scrutinised and evaluated the evidence available on record. 5. A.W. 1 Bhawana father of the deceased stated on oath before the Tribunal that due to accident caused by the aforesaid tractor, his son Devi Lal succumbed to injuries, the said tractor was owned by Ramchandra respondent No. 1. He further stated that the deceased Devi Lal was sole bread earner of the family and they were wholly dependent on him. Deceased was the vegetables and fruits vendor, he used to carry vegetables and fruits in a bus from Mandalgarh to Aroli, where he used to sell the same. He was also engaged in loading and unloading of the trucks on contract, his monthly income was about Rs. 1800-2000/-. 6. Deceased was the vegetables and fruits vendor, he used to carry vegetables and fruits in a bus from Mandalgarh to Aroli, where he used to sell the same. He was also engaged in loading and unloading of the trucks on contract, his monthly income was about Rs. 1800-2000/-. 6. A.W. 2 Chhitar who is the witness of the site map has stated that he was present when the site was inspected by the police near to Mandalgarh Krishi Upaj Mandl He further stated that there is a slop of rocky, where the tractor was hanging and Devi Lal was lying underneath the tractor. He denied the suggestion that on reaching the site, persons who were present there, informed him that the deceased was sitting over the mudguard of the said tractor. 7. The respondent No. 3 examined NAW. 1 Shri S.N. Sharma who admitted the insurance policy of the said tractor. He stated that the said tractor was comprehensively insured including the risk of third party. He further stated that the insurer had undertaken the risk of driver but not of any other person. The finding with regard to rash and negligent driving of the tractor by its driver respondent No. 2 has not been challenged by either of the parties as such become final. 8. Learned counsel for the appellant contended that the tribunal fell in error in deciding the issue No. 2 in favour of the insurer, There is no legal evidence on record by which it can be said to have been established that the deceased was sitting on the mudguard of the said tractor at the time of accident. In the instant case, the driver of the tractor respondent No. 2 has not been examined. Neither the owner nor the driver of the vehicle filed their written statements and as such the facts pleaded by the claimants remain uncontroverted. Respondents did not lead any evidence and as such fact pleaded and evidence led by the claimants remained untroverted. The claimants specifically pleaded in the claim petition that while Devi Lal was walking, suddenly the said tractor climbed on a rocky stone, turned turtle and fell on Devi Lal who was walking by the side of way. From the material placed on record and the evidence produced by the claimants it is fully established that Devi Lal was found underneath the tractor. From the material placed on record and the evidence produced by the claimants it is fully established that Devi Lal was found underneath the tractor. A.W. 2 Chittar when he went to the place of occurrence as Motbir of the site inspection, he noticed that the said tractor was turned turtle (upside down) and the dead body of Devi Lal was found under the tractor. Chhitar is not a witness to the occurrence, he is only Motbir of the site map Ex. 5, which was prepared by the Police Investigating Officer after the report of accident was lodged with the police. Thus, even the Investigating Officer who prepared Ex. 5 has no personal knowledge as to whether the deceased was sitting on the mudguard of the tractor or not. The site map is admissible in evidence only to the extent that what the author of the document site map noticed at the time of preparation of the documents. In the instant case, the investigating officer has not been produced and therefore, in absence of the testimony of the Investigating Officer, it cannot be said that what has been mentioned in the document Ex. 5 is established. There is no evidence on record to suggest that the deceased was sitting on the mudguard. In the instant case, the claimants have not witnessed the occurrence and it is the driver of the tractor a best person to explain as to how and in what manner, the accident has taken place. Undisputedly, the respondent deliberately withheld the driver form the witness-box and, therefore, the adverse inference is required to be drawn against the respondents. 9. Issue No. 2 was framed on the pleading of respondent No. 3. Issue No. 2 reads as under : " 2- D;k e'rd Vs~DVj ds eMxkMZ ij cSBk gqvk Fkk vkSj ,sls fdlh ;k=h dh foi{kh la0 5 us tksf[ke ogu ugha dh Fkh rFkk eMxkMZ ij fcBk;k tkuk jftLVs~'ku o chek ikfylh dh 'krksZa ds foijhr gS] blfy, foi{kh la[;k 5 dk dksbZ nkf;Ro ugha gS\ " 10. The language and the format in which issue No. 2 has been cast by the Tribunal clearly casts the burden of proof on the Insurance Company. Not an iota of evidence has been led by the respondent No. 3 Insurance Company to show that the deceased was sitting on the mudguard of tractor at the relevant time of accident. The language and the format in which issue No. 2 has been cast by the Tribunal clearly casts the burden of proof on the Insurance Company. Not an iota of evidence has been led by the respondent No. 3 Insurance Company to show that the deceased was sitting on the mudguard of tractor at the relevant time of accident. The test in such a situation would be who would fail if no evidence is led obviously the answer is the insurance company is to fail. Respondent No. 3 led no evidence to prove this issue. The law is settled that the party on whose shoulders, the burden of proof rests has to prove the issue by producing legal evidence and if such party fail to lead evidence, issue must be decided against such party. 11. In my considered opinion, there is no legal evidence on record to show that the deceased was sitting on the mudguard of the tractor. Thus, the finding arrived at by the Tribunal of issue No. 2 is without any foundation and, therefore, cannot be, sustained and is liable to be set aside. Accordingly, finding of issue No. 2 is hereby set aside. 12. In the instant case, the insurer has neither pleaded nor proved the terms and conditions of the policy. There is no evidence on record that the insured committed the breach of any of the terms and conditions of the policy deliberately and wilfully. Until and unless, the insurer pleads and proves by reliable evidence that it was the insured who violated the terms and conditions of the policy deliberately and wilfully and the insurer cannot disown the legal liability to pay compensation to third party. 13. It was next contended by the learned counsel for the appellant that compensation awarded by the Tribunal is shocking low and needs to be enhanced. It is settled law that in appeal, the quantum is interfered with only when it is inadequate or too excessive,as the case may be. Obviously, looking to the age of deceased, the dependency, and his income, compensation awarded by the Tribunal is really shocking as it is too low and deserves to be enhanced. 14. From the statement of Bhanwar A.W. 1 and the pleading of the claimants, it has been established that the monthly income of deceased was about Rs. Obviously, looking to the age of deceased, the dependency, and his income, compensation awarded by the Tribunal is really shocking as it is too low and deserves to be enhanced. 14. From the statement of Bhanwar A.W. 1 and the pleading of the claimants, it has been established that the monthly income of deceased was about Rs. 1800-2000/- and he was 25 years of age having dependents, the widow, three children, mother and father who were fully dependents on his income. Claimant's evidence with regard to the age, income and the dependency remained uncontroverted. The Tribunal without assigning any valid reason, determined the income of deceased to be Rs. 600/- per month and the dependency of Rs. 400/-. In my considered opinion, this part of the finding of the Tribunal is arbitrary, perverse and erroneous. There is specific evidence with regard to age and income of the deceased. -There is no material contrary to this on record and also there is no reason to disbelieve the unrebutted evidence of the claimants. The Tribunal while determining the income of deceased to be Rs. 600/- has not assigned any reason and as such the finding of the Tribunal in this regard is based on no evidence, thus, cannot be sustained. In my considered opinion, at the relevant time, the deceased used to earn more than Rs. 1800/- per month as has been established from the evidence. At the time of accident the age of deceased was 25 years and he had a long span of life. Had he not died due to the said accident, his income would have been reasonably enhanced. It is settled law that while awarding the compensation, the future prospects of life should also take into account. In General Manager, Kerala State Road Transport Corporation v. Susamma Thomas and ors., 1994 ACJ page 1 (SC) , the Hon'ble Supreme Court has held as under : "Of course, the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicant." 15. It was further observed as under : "It will not be inappropriate to take a reasonably liberal view of the prospects of the future and in estimating the gross income it will be unreasonable to estimate the loss of dependency on the present actual income of Rs. 1032 per month. It was further observed as under : "It will not be inappropriate to take a reasonably liberal view of the prospects of the future and in estimating the gross income it will be unreasonable to estimate the loss of dependency on the present actual income of Rs. 1032 per month. We think, having regard to the prospects of advancement in the future career, respecting which there is evidence on record, we will not be in error in making a higher estimate of monthly income at Rs. 2000 as the gross income. From this has to be deducted his personal living expenses, the quantum of which again depends on various factors such as whether the style of living was Spartan or bohemian. In the absence of evidence it is not unusual to deduct one-third of the gross income towards the personal living expenses and treat the balance as the amount likely to have been spent on the members of the family and the dependents. This loss of dependency should capitalize with the appropriate multiplier." 16. Taking into account the future prospects the monthly income of the deceased can safely be taken to be Rs. 2700/- and form this 1 /3 is deducted his personal living expenses, the monthly dependency would come to Rs. 1800/-. This loss of dependency would come to Rs. 1800/-. This loss of dependency should be capitalised with appropriate multiplier. In the instant case, the appropriate multiplier is 18 years purchase factor. Thus loss of income works out to Rs. 1800 X 12 X 18 = 3,88,800/- to this Rs. 15,000/- added under the head "consortium and love and affection" as awarded by the Tribunal, the total compensation works out to Rs. 3,88,800+15006= 4,03,800/- rounded to 4,00,000/-. 17. In view of the aforesaid discussion, this appeal succeeds and it is accordingly allowed and compensation awarded by the Tribunal is enhanced from 1,10,000/- to 4,00,000/-, this amount shall carry the interest at the rate and from the date awarded by the Tribunal. Since the vehicle involved in the accident was insured with respondent No. 3 at the time of accident, therefore, the respondent No. 3 is liable jointly and severally with respondents No. 1 and 2. Respondent No. 3 National Insurance Company Ltd. is directed to deposit the aforesaid award along with interest before the Tribunal within three months from today. Since the vehicle involved in the accident was insured with respondent No. 3 at the time of accident, therefore, the respondent No. 3 is liable jointly and severally with respondents No. 1 and 2. Respondent No. 3 National Insurance Company Ltd. is directed to deposit the aforesaid award along with interest before the Tribunal within three months from today. Out of the total award, appellant Smt. Chandni wife of deceased Devilal will get Rs. 1,50,000/- and interest thereon and Bhawani Lal, Smt. Raji, Durgalal, Lila and Premi each will get Rs. 50,000/- and interest thereon. The amount payable to appellant No. 1 Smt. Chandni at the first instance shall be deposited in fixed term deposit for a period of 5 years, amount payable to appellants No. 2 and 3 each shall be deposited in fixed term deposit for a period of 5 years and amount payable to appellants No. 4, 5 and 6 each, who are minors, shall be deposited in fixed term deposit for a period of 5 years with a direction of further renewal till they attain majority. The Tribunal shall take into account the guideline issued by Hon'ble Supreme Court in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas reported in 1994 ACJ 1 (SC) and invest as much of amount as it thinks reasonable in long term deposit yielding adequate returns permitting the claimants to withdraw the interest periodically. No order as to costs.Appeal allowed. *******