Judgment ( 1. ) THE decision rendered in this appeal shall also govern disposal of other 2 appeals being M. A. No. 1430/05 and M. A. No. 1108/05 because all these 3 appeals arise out of one impugned award and secondly, these appeals arise between the same parties. ( 2. ) THIS is an appeal, filed by the claimants under Section 173 of Motor Vehicles Act (for short herein after called "the Act") against an award dated 22nd December, 2004 passed by 20th Member, M. A. C. T. , Indore (M. P.) in claim petition of claimants filed under section 166 of the Act against the non-applicants/respondents was partly allowed by awarding to claimants total compensation of rs. 5,76,000/- for the death of "pritesh". The tribunal, however, held that the accident was caused partly due to negligence of deceased himself i. e. Pritesh, who was driving his Car so also drivers of other 2 offending vehicles involved in the accident. The Tribunal, therefore, applied the principle of contributory negligence and apportioned the extent of negligence equally between the 3 drivers of vehicles involved in the accident. This is how the deceased was held responsible for causing the accident by his negligence to the extent of 1/3rd. Resultantly, the Tribunal deducted from the total compensation (Rs. 5,76,000/-)and accordingly awarded 2/3rd of Rs. 5,76,000/-i. e. Rs. 3,84,000/- to the claimants. It is against this award, 3 appeals are filed. ( 3. ) SO far as M. A. No. 1072/05 is concerned, it is filed by claimants contending that firstly, tribunal erred in holding that deceased was also responsible for causing the accident to the extent of 1/3rd and secondly, compensation awrded to the claimants by the Tribunal is on lower side hence it should be enhanced. So far as M. A. No. 1430/05 and M. A. No. 1108/05 are concerned, both are filed by Insurnace companies of 2 offending vehicles. In these 2 appeals, the Insurance Companies have contended that accident in question occurred due to sole negligence of deceased-Pritesh, hence no liability arising out of accident in question can be fastened upon the non-applicants either jointly or severally. This is how the whole controversy is raised by the parties in these 3 appeals. ( 4. ) SO 2 questions arise in these 3 appeals. First, whether Tribunal was justified in awarding the total compensation of Rs. This is how the whole controversy is raised by the parties in these 3 appeals. ( 4. ) SO 2 questions arise in these 3 appeals. First, whether Tribunal was justified in awarding the total compensation of Rs. 5,76,000/- for the death of Pritesh to the claimants and if not, whether any case for enhancement is made out and if so, to what extent ? Second, whether Tribunal was justified in holding that case of contributory negligence of deceased-Pritesh while driving his vehicle was made out and if so to what exten? ( 5. ) FACTS in brief are these. ( 6. ) IT is death case. On 23rd march, 1999, pritesh, aged around 23 years, student of engineering, died in a vehicular accident. It is the case of claimants that on 23rd Mach, 1999, he was going from Pune to Satara in his own vehicle (M. P.-9-H-A-2034 Tata Ciara)alongwith his friends when Tanker bearing no. MH-04/h/7422 owned by NA-1, driven by na-2 and insured with NA-3 came from behind and another vehicle (Tanker bearing No. MH-09-1/63740 owned by NA-4, driven by NA-5 and insuredwith NA-5 came from opposite direction and dashed to the vehicle of deceased as a result of which Pritesh died on the spot. It was alleged that accident in question occurred due to negligence of drivers of 2 tankers. The claimants, who are parents, claimed compensation forthe death of pritesh from the non-applicants jointly and severally. ( 7. ) SO far as drivers and owners of 2 offending vehicles were concerned, they remained ex-parte since inception. The claim was contested by 2 Insurance Companies of respective offending vehicles (Tankers) i. e. NA-3 and 6. So far as Insurance Companies were concerned, they admitted the factum of accident but contended that occurred due to sole negligence of Pritesh i. e. deceased and not that of 2 drivers of Tankers, who were not negligent in their respective driving hence. It was, therefore, contended that the claimants are not entitled to claim any compensation arising out of accident from any of the non-applicants. ( 8. ) THE Tribunal on the basis of aforesaid pleadings framed 3 issues. One issue was whether non-applicant No. 2 i. e. ; driver of tanker was negligent in driving his vehicle whereas other issue was whether NA-5 i. e. diver of other Tanker was negligent in driving his vehicle. ( 8. ) THE Tribunal on the basis of aforesaid pleadings framed 3 issues. One issue was whether non-applicant No. 2 i. e. ; driver of tanker was negligent in driving his vehicle whereas other issue was whether NA-5 i. e. diver of other Tanker was negligent in driving his vehicle. The third issue was relating to quantum of compensation payable to the claimants. There was no issue framed by the tribunal on the point of contributory negligence. The claimant examined 3 witnesses to prove the accident, which included one eye-witness who proved the accident and the manner in which it occurred whereas other 2 witnesses proved the loss sustained by claimants. So far as the non-applicants were concerned, they did not adduce any evidence. ( 9. ) AS observed supra, the Tribunal allowed the claim petition and awarded a total compensation of Rs. 5,760007- to the claimants for the death of Pritesh. However, the Tribunal on appreciation of evidence came to a conclusion that all the three drivers of respective 3 vehicle involved in the accident were negligent in equal proportion i. e. 1/3rd each in their driving, which resulted in accident causing death of Pritesh. In this view of the matter, the claimant was held entitled to claim only 2/3 rdof total compensation awarded by the tribunal from the respondents because deceased was held responsible for causing accident to the extent of 1/3 rd. Accordingly, an award for Rs. 3,84,000/- being 2/3 rd of rs. 5,76,000/- was passed in claimants favour and against the non-applicant jointly and severally to be recovered in the same proportion. It is against this award, the claimants have filed the appeal (M. A. No. 1072/05) and has raised 2 questions formulated supra whereas in other 2 appeals i. e. M. A. No. 1108/2005 and M. A. No. 1430/2005, the insurance Companies have disputed their liability by contending that 2 drivers of Tankers were not negligent in their respective driving hence no liability can be fastened upon them. ( 10. ) HEARD Shri S. Neema, learned Counsel forthe appellants and Shri D. P. Verma, learned counsel for the respondent NO. 3, Shri Vijay bakshi learned Counsel for the Respondent no. 6 and Shri S. V. Dandwate, learned Counsel for the Insurance Company. ( 11. ( 10. ) HEARD Shri S. Neema, learned Counsel forthe appellants and Shri D. P. Verma, learned counsel for the respondent NO. 3, Shri Vijay bakshi learned Counsel for the Respondent no. 6 and Shri S. V. Dandwate, learned Counsel for the Insurance Company. ( 11. ) HAVING heard learned Counsel for the parties and having perused the record of the case, we are inclined to allow this appeal in part as indicated infra. ( 12. ) THE first question that arises for consideration is; whethertribunal was justified in, holding that a case of contributory negligence on facts pleaded and evidence adduced by the parties is made to? If so, whether this finding is legally and factually sustainable? ( 13. ) THE law relating to contributory negligence is well settled. Though, it is uncodified principle laid down in Law of torts but by judicial precedents rendered by courts all over the world, it has received judicial consistency in its principle. G. P. Singh, the learned author in his celebrated commentary on Law of Torts (22nd edition of ratan Lal Dhiraj Lal) after taking note of various cases on this subject, summarized the principle as under (at page 480/481); "the question simply is whether the plaintiff or the deceased (in case of claims arising out of death) had failed to take reasonable care of his own safety which had contributed to the damage. Subject to non-requirement of the existence of duty, the question of contributory negligence is to be decided on the same principles on which the question of defedantss negligence is decided. The standard of reasonable man is as relevant in the case of plaintiffs contributory negligence as in the case of defendants negligence. In words of denning, L. J. , "a person is guilty of contributory negligence if he ought reasonable to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless. " the learned author further comments on the subject as under (page 482); "it has been held that contributory negligence must be pleaded by the defendant. On the plea being established, the Courtis empowered to order reduction of the damages by an amount which is "just and equitable". " the learned author further comments on the subject as under (page 482); "it has been held that contributory negligence must be pleaded by the defendant. On the plea being established, the Courtis empowered to order reduction of the damages by an amount which is "just and equitable". Apportionment of blame and consequent reduction of damages are normally done; but it has been suggested that if the blame of the plaintiff employee is only slight, it may not be just and equitable to reduce the damages against the defendant employer, conversely, it has been held that if the plaintiffs fault was so great that he should not get any damages, he would not be allowed any damages though the defendants contribution to the damage could not be denied. In apportioning the blame and reducing the damages the Court should take into accountthe respective blameworthiness of the parties as also the causative potency of their acts or omissions. " (Emphasis supplied by us) ( 14. ) HAVING gone through the evidence adduced by the claimants and keeping the aforesaid well settled principle of contributory negligence in mind, we are of the considered view that learned member of Claims Tribunal committed an error of law in holding that deceased-Pritesh was negligent in his driving thereby guilty of committing contributory negligence alongwith other 2 divers i. e. NA-3 and 5, which caused the accident. In our view, such finding is not capable of being sustained both on facts and at law for several reasons mentioned infra in detail. ( 15. ) AS observed supra, the claimants alone have adduced evidence to prove as to how the accident occurred. Inordertodischarge their initial burden that lay on them as required under Section 166 ibid for proving this material fact, the claimants have examined P. W. 2 rinku Kedia. We accept and hold that P. W. 2 was the only eye witness to the accident because there is nothing to hold contra. He has in clear terms stated that he was going from Pune to Hari Hareshwar in Tata Ciara alongwith deceased - Pritesh and while they were proceeding to Hari Hareshwarone Tanker came and dashed to their car from rear and at the same time other Tanker coming from opposite direction dashed from front. He has clearly stated that the vehicles, which dashed to their Car were being driven by NA-2 and NA-5 rashly. He has clearly stated that the vehicles, which dashed to their Car were being driven by NA-2 and NA-5 rashly. He has, further stated that Pritesh was driving his Car on right side carefully in moderate speed, when both vehicles dashed to their Car all of a sudden. To rebut this evidence, non-appiicants i. e. drivers of offending vehicles ought to have entered in witness box and explained as to how and in what circumstances the accident occurred. Indeed, the non-applicants No. 2 and 5 were the only material witnesses to prove to the nature of accident in addition to P. W. 2 both being eye-witness to the accident. No. cause much les satisfactory one was disclosed by respondents/non-applicants as to why both did not enter into witness box. If they despite being a party to claim petition as non-applicants refused to enter in witness box to prove their case then nothing prevented the Insurance company R-3/6 to examine NA-2/5 as their witness to rebut the version of P. W. 2 on the crucial point of accident and the manner in which it occurred. The NA-2 and 5 i. e. drivers of both offending vehicles were fortunate to have survived in the accident. They also did not suffer any injury hence it was ail the more obligatory upon them to have explained as to how the accident occurred and who was responsible for causing the accident. In our view, it is not enough to plead in defence but is equally necessary for the non-applicants to prove by adducing evidence in rebuttal in support of defence. We have, therefore, no hesitation in drawing an adverse interference against the respondents/non-applicants by holding that they (non-applicant) failed to prove their defence of negligence of deceased despite affording them of an opportunity to prove the same. ( 16. ) IN ourconsidered opinion, the evidence adduced by the claimants clearly makes out a case of sole negligence on the part of both drivers of offending vehicle i. e. NA-2 and 5. As observed supra, in first place, claimants not only pleaded the case of negligence on the part of NA-2 and 5 but, also proved the same by examining P. W. 2 and accordingly discharged the initial burden that lay on them. Secondly, no evidence was adduced by the non-applicants. As observed supra, in first place, claimants not only pleaded the case of negligence on the part of NA-2 and 5 but, also proved the same by examining P. W. 2 and accordingly discharged the initial burden that lay on them. Secondly, no evidence was adduced by the non-applicants. Thirdly, in the absence of any rebuttal evidence, a plea taken in the written statement by the Insurance Companies remained unproved. In fact, the manner in which the non-applicants took a plea in their written statement cannot be said to be a proper one for want of any factual pleading. It was hearsay because Insurance Company had no knowledge of the accident. ( 17. ) IN our opinion, the Tribunal, thus, committed an error of law in making out a new case of contributory negligence. As observed supra, in the first place as is clear from the principle quoted supra, the plea of contributory negligence is required to be pleaded by the defendants/non-applicants in the written statement. Secondly, as is clear from the written statement of Insurance Company, the plea of contributory negligence was not taken by them. On the other hand, it was their case that deceased himself was negligent in driving his vehicle. Thirdly, in the absence of any pleadings regarding contributory negligence, the Tribunal travelled outside the pleadings of the case and found out a new case not set up by the parties in their pleading and lastly, there was no basis for placing reliance on some documents, which were not proved by any person from police department for holding the case of contributory negligence to have been made out against the deceased. It is for all these reasons, the finding of contributory negligence recorded by the Tribunal is not sustainable. It is, accordingly, set aside by holding that accident in question occurred solely and equally due to rash and negligent act/driving of NA-2 and NA-5 i. e. drivers of tankers hence, both the Insurance Companies are held liable to pay the awarded sum in equal proportion i. e. 50% each. ( 18. ) THIS takes us to the next question as to whether any case is made out for enhancement in the compensation awarded by the Tribunal. ( 19. ) WE have gone through the evidence adduced by the claimant on the question of loss of income occurred to the claimants due to death of Pritesh. ( 18. ) THIS takes us to the next question as to whether any case is made out for enhancement in the compensation awarded by the Tribunal. ( 19. ) WE have gone through the evidence adduced by the claimant on the question of loss of income occurred to the claimants due to death of Pritesh. Having gone through the evidence, we are of the view that compensation determined by the Tribunal on evidence adduced by the claimants does not call for any interference. It is in our view, just and reasonable. The deceased was a student of engineering. He was not an earning member. Thetribunal, therefore, tookinto consideration deceaseds family background, his educational qualification and accordingly awarded a total sum of Rs. 5,76,000/ -. Since, we have set aside the finding of contributory negligence in favour of claimants and against the respondents hence, the compensation awarded by the Tribunal is increased from rs. 3,84,000/- to Rs. 5,76,000/ -. In this way, the claimants would now be able to get a sum of Rs. 5,76,000/- in place of Rs. 3,84,000/-from the respondents jointly and severally as indicated supra. ( 20. ) LEARNED Counsel forthe appellant cited some authorities for claiming enhancement. We have gone through these authorities. In our opinion and as observed supra, every case depends upon facts of each case and one can rely upon cases for a warding compensation. Indeed taking into consideration these authorities and then applying the law so laid down to the facts of this case, we have arrived at the figure of enhanced compensation mentioned supra. ( 21. ) IN this view of the matter, the appeal field by claimants i. e. M. A. No. 1108/05 succeeds and is allowed in part. Impugned award is modified to the extent indicated above. The awarded sum will carry the interest at the same rate, which was awarded by the tribunal from the date of application till realization. In other words, since this Court has now held that deceased was not negligent in his driving hence the entire liability is now fastened upon the respondents jointly and severally. In this view of the matter, the claimants will now be entitled to recover the entire awarded amount of Rs. 5,76,000/-together with interest from the respondents jointly and severally as indicated in para 16. All other findings are upheld being not under challenge. In this view of the matter, the claimants will now be entitled to recover the entire awarded amount of Rs. 5,76,000/-together with interest from the respondents jointly and severally as indicated in para 16. All other findings are upheld being not under challenge. In the light of this finding, MA no. 1430/05 and M. A. No. 1072/05 filed by insurance Companies are dismissed. Counsel fees Rs. 1,500/-, if certified, for each appeal payable to Counsel for claimants.