1. This appeal by the insurance company is directed against the judgment and award dated 16.10.2008 passed by the learned Member, Motor Accident Claims Tribunal, Aizawl, Mizoram in MAC Case No.64 of 2007, whereby and whereunder a sum of Rs. 7,34,500 with 9% interest per annum from the date of submission of the claim petition till the realisation of the same has been awarded and the appellant company is directed to satisfy the same on account of death of claimants' brother/father/son, namely, Thanliantluanga in a motor accident occurred on 24.2.2007 at about 4.30 p.m. due to use of a motor vehicle being registration No.AS-11C-7466 belonging to one Samrat Inder Singh of Mela Road Malugram, Silchar, Cachar, respondent No.6 herein. 2. A claim petition was filed by the respondent Nos. 1 to 5 under section 166 of the M.V. Act, 1988 before the Member, MACT against the present appellant and respondent No.6 arraying both of them as opposite parties claiming compensation on account of death of Thanliantluanga in a vehicular accident occurred on 24.2.2007 at about 4.30 p.m. which occurred at Sihphir Vengthar on account of use of motor vehicle being registration No.AS-11C-7466 stating, inter alia, that deceased Thanliantluanga was a Stone Mason (Lung Mistiri) having monthly income of Rs. 6,000 and was 33 years of age at the time of his death. Notices were issued to the opposite parties and pursuant to the notice, appellant opposite party No. 2 entered appearance and contested the claim by filing written statement disputing the monthly income and the fault on the part of the offending vehicle. Though the notice had been issued and received by owner of the offending vehicle, opposite party No.1 did not contest the claim, which compelled the appellant opposite party No. 2 to file an application under section 170 of the Motor Vehicles Act, 1988 to contest the claim on all grounds available to the owner of offending vehicle. On making such an application the learned Member allowed the application of the appellant-opposite party No.2 to contest on all grounds available to the owner of the offending vehicle. Claimant respondent No. 1 in support of their claim examined herself as one of the witnesses including three others. However, the appellant herein who has been arrayed as opposite Party No.2 in the claim petition did not adduce any evidence to substantiate its claim. Claimant respondent No. 1 in support of their claim examined herself as one of the witnesses including three others. However, the appellant herein who has been arrayed as opposite Party No.2 in the claim petition did not adduce any evidence to substantiate its claim. It would be apposite to mention at this stage that the claimants' in support of their claim proved 16 nos. of documents in all. The learned Member, MACT, after taking care of the facts, evidence on record both oral and documentary, by the impugned judgment and award awarded compensation as indicated above with interest from the date of the application until realisation. At this stage it would also be appropriate for this court to make a mention that respondent Nos.2 to 4 were the sons of the deceased Thanliantluanga, while respondent No.5 is the mother of the deceased. Respondent Nos.2 to 4 are all minors and that being so they are represented by their next friends, respondent Nos.1 and 5. 3. Mr. S.N. Meitei, learned counsel for the appellant resisted this impugned judgment and award primarily on the following two counts : (a) Monthly income of Rs. 6,000 as alleged to have been earned by the deceased, Thanliantluanga is not proved by acceptable evidence both oral and documentary. The certificate of income, Exhibit: C-4 issued by Village Council President, Lungdai certifying his (deceased) income at Rs. 6,000 per month is not acceptable in view of the decision rendered in the case between New India Assurance Company Ltd. v. Kawllianthanga and Anr., 2007 (3) GLT 444. The author of the Certificate C-4, the income certificate being with held by the claimants, the authenticity of the Exhibit: C-4 turns doubtful. Therefore, in such a situation notional income is to be calculated. Evidence adduced by Lalhlima, the Secretary of Lungdai Stone Mistiri Association of Lungdai in respect of monthly income of the deceased as claimed cannot inspire confidence in view of his over all evidence appearing in the face of the record. The deceased being a Lung Mistiri falls under the category of Skilled Gr. II (Jr. Grade having less experience) whose wage is fixed at Rs. 126 per day per provision of the notification of the Labour and Employment Department, Government of Mizoram dated 17.7.2007 and accordingly deceased's income is required to be calculated per notification in absence of acceptable evidence on record. II (Jr. Grade having less experience) whose wage is fixed at Rs. 126 per day per provision of the notification of the Labour and Employment Department, Government of Mizoram dated 17.7.2007 and accordingly deceased's income is required to be calculated per notification in absence of acceptable evidence on record. (b) The compensation being claimed under fault liability, (under section 166 of the M.V. Act) claimants are obliged to prove negligence on the part of the driver of the offending vehicle. Accident having been taken place in the metelled part/portion of the road and there being no eye evidence to the actual occurrence, application of principle of res-ipsa-loquitor is not warranted. Witness RB. Singh, Sub-Inspector of Police then posted at bawnkawn police station also failed to prove negligence on the part of the offending vehicle. His evidence is based on information supplied to him by the driver of the offending vehicle who is not a party to the proceeding before the Tribunal. Mere filing of a charge sheet against the driver of the offending vehicle does not imply that the driver of the offending vehicle was negligent in driving his vehicle. 4. On these above two counts Mr. S.N. Meitei, learned counsel for the appellant strenuously argued that the Member, MACT came to a wrong finding that the claimants are entitled for compensation on account of fault liability. It was also submitted by him that the learned Member, MACT also committed error and illegality in accepting the monthly income of the deceased at Rs. 6,000 when there la no acceptable evidence in support of it. Mr. Meitei, therefore, in view of over all facts and circumstances of the case and evidence laid stress that compensation made perhaps be computed considering the deceased as a Skilled Grade-II ( Jr. Grade having less experience) per notification dated 17.7.2007 of the Labour and Employment Department, Government of Mizoram. 5. Mrs. Helen Dawngliani, learned counsel for the respondents vehemently opposed the stand taken by Mr. S.N. Meitei, learned counsel for the appellant. In respect of the issue of income she submitted that there is no reason at least to disbelieve the evidence of the Secretary of the Lungdai Stone Mistiri Association inasmuch as the deceased was working with him since long. Helen Dawngliani, learned counsel for the respondents vehemently opposed the stand taken by Mr. S.N. Meitei, learned counsel for the appellant. In respect of the issue of income she submitted that there is no reason at least to disbelieve the evidence of the Secretary of the Lungdai Stone Mistiri Association inasmuch as the deceased was working with him since long. The witness being the Secretary of the association must have knowledge about the income of the deceased Lung Mistiri and, therefore, it cannot be assailed on the ground that he himself is the author of the certificate, Exhibit-C-20. She also put emphasis minus the evidence of the Secretary, evidence of the claimant Thangsailovi at least cannot be brushed aside since she being the sister of the deceased had every information about his income. Referring to evidence of Thangsailovi it was argued by Mrs. Helen Dawngliani that the deceased used to give her all his earnings on account of which she had the information about the income of the deceased. Evidence available on record in regard to the income of the deceased has been accepted by the learned Member, MACT in its right perspective there being no ambiguity. Therefore, the award computed taking monthly income at Rs. 6,000 cannot be assailed, she argued. 6. We have on record Exhibit: C-4, the income certificate issued by the village council President as well as the exhibit C-20 issued by the Secretary of lung Mistiri/Stone Mistiri Association in regard to income of the deceased. The author of a Exhibit: C-4 being withheld, the same cannot be taken into consideration. In the same way, the Exhibit : C-20 though the author is examined, the same also cannot be accepted in view of his evidence appearing in chief and cross-examination as well. Therefore, perhaps, no way is left out then to take the wage as indicated in the notification dated 17.7.2007. 7. Mrs. Helen Dawngliani in support of her contention in regard to income referred to the decisions rendered in MAC Appeal No. 9 of 2004, MAC Appeal No.37 of 2004 and MAC Appeal No.11 of 2005. Relying the aforesaid decisions it was argued by Mrs. Helen Dawngliani that mere denial in respect of the income is not enough when the insurance company failed to adduce any evidence to rebut the categorical evidence of the witnesses. Relying the aforesaid decisions it was argued by Mrs. Helen Dawngliani that mere denial in respect of the income is not enough when the insurance company failed to adduce any evidence to rebut the categorical evidence of the witnesses. Therefore, it would be wrong to argue that the learned Member, MACT committed error in accepting the monthly income at Rs. 6,000. I have gone through the decision as referred to by Mrs. Helen Dawngliani, but the evidence appearing in the face of the record in respect of the income turns unacceptable in view of absence of plausible evidence. It is true that the appellant herein except challenging this issue by written statement no evidence is adduced in support of it. The evidence which are available on record in respect of income of the deceased cannot be taken care of in view of creeping of some unacceptable facts in the cross-examination. Therefore, this court thinks it appropriate to apply the wage rate indicated in the notification dated 17.7.2007 of the Labour and Employment Department, Government of Mizoram for computation of the award. 8. In respect of proof of negligence, Mr. S. N. Meitei, learned counsel for the appellant strenuously argued that there is no iota of evidence that the accident occurred due to negligence of the driver of the offending vehicle. Referring to the evidence on record, evidence of the Sub-Inspector in particular submitted that the accident occurred due to negligence of the deceased only, since the accident occurred at the matelled part of the road when admittedly there is no eye witness, it was argued by Mr. Meitei that it would be wrong to say that the driver was negligent. From the evidence of Sub-Inspector and Exhibit C-5 such accident cannot be denied, as a result of which the deceased died. It also appears from Exhibit C-5 that Bawgkawn P.S. Case No.90 of 2007 was registered against the driver of the offending vehicle under sections 279 and 304A, IPC. Name of the driver was Mahindra Singha, S/o. Mohini Singha of Kathal Tea Estate, Cachar, Assam. The Bawngkawn P.S. Case No.90 of 2007 per Exhibit: C-5 was return in charge sheet having found prima facie case, material against the driver. Placing reliance in the decision of the case between Ram Karan and Ors. v. Zile Singh and Others, 2001 (3) TAG 707 (P&H) Mr. The Bawngkawn P.S. Case No.90 of 2007 per Exhibit: C-5 was return in charge sheet having found prima facie case, material against the driver. Placing reliance in the decision of the case between Ram Karan and Ors. v. Zile Singh and Others, 2001 (3) TAG 707 (P&H) Mr. Meitei, learned counsel for the appellant submitted that mere framing of charge will not suffice. Even the judgment of conviction or acquittal of criminal court is not binding on the Tribunal. The onus of proving negligence is always upon the claimant(s) and they have to discharge it. It was argued by Mr. Meitie that in absence of acceptable evidence in the context of negligence on the part of the driver of the offending vehicle the attending circumstances appearing in the face of the record do not justify that the driver was negligent while driving the offending vehicle and thus, resulted death of the deceased. Application of principle of res-ipsa-loquitor by the Member, MACT relying in the decision rendered in M/s. United India Insurance Co. Ltd. v. Lalengmawia, (MAC App. No.9 of 2004) would not come into play in view of the evidence on record, evidence of the Sub-Inspector in particular. Now, the issue before us, whether in the face of the facts and evidence on record, this principle can be applied. Admittedly, there is no eye witness. Burden of proving negligence is always on the claimant. It is not always expected that the claimant would come and state before the court/tribunal that the accident occurred because of the negligence of the driver of the offending vehicle. If no such specific evidence is available before the court, negligence on the part of the driver is to be gathered from the totality of the facts and circumstances leading to the accident. Here, in the instant case we have found that accident occurred in the matelled part of the road. It is also in the evidence on record that the deceased signaled the vehicle to stop but in spite of such signaling the vehicle did not stop rather the deceased had been ran over by the left hand side rear wheel of the offending truck. This fact goes to show that the deceased was on the left side of the road and he tried to stop the vehicle by signaling it. But it did not stop rather ran over the deceased. This fact goes to show that the deceased was on the left side of the road and he tried to stop the vehicle by signaling it. But it did not stop rather ran over the deceased. Every driver of a motor vehicle while driving is required to take precaution and to be vigilant so as to avoid any possible accident. Such vigil and precaution should always be maintained through out the road while driving. There is no evidence that the driver of the offending vehicle did not see the deceased signaling the vehicle to stop. Evidence is very much on record that the driver saw the deceased signaling the vehicle. So it was incumbent on the part of the driver either to stop the vehicle or slow its motion so that no untoward happened but the driver did not take such precaution rather caused the accident. These facts if combined together would go to show that the driver was negligent in driving vehicle. Accident admittedly occurred at about 4.30 p.m. it was day time and occurred at Sihphir, Vengthar. In that situation there would be no reason why driver of the offending vehicle could not see or notice the deceased signaling his vehicle to stop. Neither the driver nor the owner of the vehicle has come forward and contested the case. The appellant company by filing application under section 170 of the Act assumed the responsibility to contest the claim petition on all grounds that may be raised by the owner or the driver. When this maxim applies, the burden is on the driver or the owner to show that in fact he was not negligent and the accident did not occur because of his negligent. In this context it was the duty of the appellant company to produce the driver at least to rebut the claim of the claimants. This step having been not taken by the appellant-company, on account of death of the deceased on a vehicular accident on the relevant date, attending facts and circumstances of the case together with the evidence on record are to be taken care of. Mrs. Helen Dawngliani, learned counsel appearing for the respondents relied on the following decisions ; (1) Bimla Devi and Others v. Himachal Road Transport Corporation and Others, 2009 (2) TAG 693 (SC). (2) Special Secy. Government of Nagaland and Another v. Ladsie and Others, 2006 (2) GLT555. Mrs. Helen Dawngliani, learned counsel appearing for the respondents relied on the following decisions ; (1) Bimla Devi and Others v. Himachal Road Transport Corporation and Others, 2009 (2) TAG 693 (SC). (2) Special Secy. Government of Nagaland and Another v. Ladsie and Others, 2006 (2) GLT555. (3) Shanthi and Others v. K. Nallasamy and Another, 2008 (4) TAC 83 (Mad.). (4) Judgment and Order dated 16.7.2006 in MAC App. No.9 of 2004. 9. The learned Member, MACT while dealing while the inquiry relying the judgment and order rendered in MAC App. No.9 of 2004 also came to a finding that the attending facts and circumstances of the case and evidence warrant the principle of res-ipsa-loquitor in absence of sufficient evidence available on record in the proof of negligence on the part of the driver. This court, therefore, finds nothing to interfere with the finding of learned Member, MACT in regard to application of the principle of res-ipsa-loquitor. The decisions rendered in the cases (supra) amply lend support to this present case, and therefore, this court finds sufficient force in the argument advanced by Mrs. Helen Dawnglinai on this issue. Accordingly, the claimants are entitled to have compensation under section 166 of the M.V. Act on account of death of the deceased, Thanliantluanga in a vehicular accident on the relevant date. 10. We have already come to conclusion that the income of the deceased at Rs. 6,000 per month being not acceptable, the wage rate applicable for Skilled Grade-II (Jr. Grade having less experience) as indicated in the notification dated 17.7.2007 can be taken for the purpose of computation of the award. Application of the wage rate as indicated in the notification perhaps to the considered view of this court would be acceptable to the parties to this appeal inasmuch as the deceased is treated as Skilled Grade-II (Jr. Grade having less experience). Admittedly, deceased was married man. His sister, mother and three children filed the claim petition under section 166 of the Act. That being so, only 1/3rd of his income can be considered as dependency benefit to the surviving ones. Mrs. Helen Dawngliani, relying on the decision rendered in Revision Petition No.8 of 2008 in between Keeper Lalrohlua (Minor) v. National Insurance Co. Ltd. dated 30.4.2009 and United India Insurance Co. Ltd. v. Chhtnganlal Punamchand Jain and Others, 2005 ACJ 1046 . That being so, only 1/3rd of his income can be considered as dependency benefit to the surviving ones. Mrs. Helen Dawngliani, relying on the decision rendered in Revision Petition No.8 of 2008 in between Keeper Lalrohlua (Minor) v. National Insurance Co. Ltd. dated 30.4.2009 and United India Insurance Co. Ltd. v. Chhtnganlal Punamchand Jain and Others, 2005 ACJ 1046 . Submitted that the award can be calculated taking the ratio of the both the decisions. The decisions are gone into wherein the award has been computed in the one of the methods indicated therein. This court seems it reasonable to calculate the award as under : Loss of income : Rs. 126 x 26 x 12 x 17 x 2/3 = Rs. 4,45,536.00 Funeral expenses = Rs. 2,000.00 Loss of estate - Rs. 2,500.00 Conventional amount - Rs. 10.000.00 Total : Rs. 4,60,036.00 (Rupees four lakh sixty thousands thirty six only). The above amount shall carry interest at the rate of 6 per cent per annum from the date of the claim petition until realisation. The judgment and award impugned is modified to the extent as indicated above. The aforesaid amount with interest shall be paid by the appellant to the claimant-respondents within a period of 3(three) months. If in the meantime, any portion of the amount has been received by the claimant-respondents, the same shall be deducted at the time of final payment. 11. Appeal is partly allowed. No cost.