Judgment :- R.BANUMATHI,J. 1. This appeal is preferred against the award dated 18.3.2010 made in M.C.O.P.No.105 OF 2008 on the file of Motor Accident Claims Tribunal-cum-Chief Judicial Magistrate, Coimbatore challenging the quantum as well as the fastening of liability upon deceased V.Sampathkumar. 2. Deceased Sampath Kumar worked as a Project Officer in the Department of Civil Engineering Department in Kumaraguru College of Technology, Coimbatore from 2004 to 2006. In August, 2006, he started his partnership business along with his father -Vasudevan under name and style of Athanoor Amman Textiles. On 25.2.2008, when deceased Sampathkumar, Lourdhuraja, Rayer Peter and Rajendran were proceeding to Athanoor Amman Textiles in an Ambassador Car bearing Regn.No.MSL.4900 driven by the deceased Sampathkumar from Coimbatore to Palladam from north to south on Trichy Road in a moderate speed. At about 10.00 A.M, when car was proceeding near Shanthi Gears, a lorry bearing Regn.No.TN.57-A.8699 came in opposite direction in a rash and negligent manner and dashed against the Ambassador car and all inmates of the car sustained grievous injuries and were admitted in K.G.Hospital, Coimbatore and on the same night, Sampathkumar succumbed to injuries. The 1st respondent -driver of the lorry lodged a complaint on 25.2.2008, based on which a case in Crime No.158 of 2008 was registered against deceased Sampathkumar, who drove the car. After the discharge from the Hospital, P.W.2 -Rajendran went to Police Station and lodged a complaint on 24.3.2008 alleging that the accident was due to rash and negligent driving of lorry driver. Police was not inclined to receive his complaint on the ground that already case has been registered in Crime No.158 of 2008 against deceased Sampathkumar. Deceased Sampathkumar was earning more than Rs.25,000/-from his partnership business in textiles. Alleging that the accident was due to rash and negligent driving of lorry driver and that family has lost the support of the bread winner Sampathkumar, claimants, who are wife, son and parents of the deceased, filed claim petition claiming compensation of Rs.50,00,000/-. 3. Respondents 3 and 4 filed counter resisting the claim petition and denied that the accident was due to rash and negligent driving of lorry bearing Regn.No.TN-57-A-8699 by the first respondent. The deceased Sampathkumar, driver of Ambassador car MSL 4900 suddenly came to wrong side and contributed to the accident. No liability can be saddled against them for the own negligence on the part of deceased Sampathkumar. The deceased Sampathkumar, driver of Ambassador car MSL 4900 suddenly came to wrong side and contributed to the accident. No liability can be saddled against them for the own negligence on the part of deceased Sampathkumar. If at all the claimants are entitled to compensation, it could be claimed only against owner of Ambassador car since the deceased is guilty of violation of traffic rules and policy conditions of owner of car. The claimants have to prove that the accident occurred due to the rash and negligent driving of the lorry bearing Regn.No.TN.57.A.8699 and that he was holding valid and effective driving licence to drive lorry at the time of accident. Claimants are to prove that respondents 3 and 4 also raised objection as to age of deceased, hospitalisation, employment, loss of earnings and contended that the compensation claimed is excessive. 4. The first claimant - wife of deceased has examined herself as P.W.1. Eye witness, -Rajendran, who has also travelled in the Ambassador car bearing Regn.No.MSL.4900 and sustained injuries in the accident was examined as P.W.2. One Kanagaraj, Senior Superintendent Administrative Officer of Kumaraguru College of Technology was examined as P.W.3 and Exs.P.1 to P.16 were marked on the side of claimants. No oral and documentary evidence was adduced on the side of respondents. Upon consideration of oral and documentary evidence, Tribunal held that the accident was due to head on collision between Ambassador car bearing Regn.No.MSL.4900 and the lorry bearing Regn.No.TN.57.A.8699. However, Tribunal held that as per Ex.P.12 -copy of driving licence of the deceased, the driving licence was valid till 5.1.2006 and that the accident was on 25.2.2008 and that there is no acceptable evidence for concluding that the deceased Sampathkumar had valid driving licence. On those findings, Tribunal apportioned 75 percent liability to deceased Sampathkumar and 25 percent liability to the lorry driver. In so far as the compensation, Tribunal has taken the income of the deceased at Rs.8,000/- and after deducting 1/5th towards personal expenses, the loss of contribution to the family was arrived at Rs.6,400/-. On those findings, Tribunal apportioned 75 percent liability to deceased Sampathkumar and 25 percent liability to the lorry driver. In so far as the compensation, Tribunal has taken the income of the deceased at Rs.8,000/- and after deducting 1/5th towards personal expenses, the loss of contribution to the family was arrived at Rs.6,400/-. As the deceased was aged 33 years, adopting multiplier 17, Tribunal has calculated the loss of dependency at Rs.13,05,600/-(Rs.6,400 x 12 x 17) and adding conventional damages of Rs.20,000/-towards loss of consortium, Rs.15,000/- towards loss of love and affection, Rs.5,000/-towards transport expenses, Rs.2,000/-towards damage to clothing and articles and a sum of Rs.10,000/- towards funeral expenses, total compensation was calculated at Rs.13,57,600/-. From out of the said amount, 25% compensation payable to the claimants was calculated at Rs.3,39,400/-. Challenging the impugned award, both on the grounds of quantum as well as the fastening of liability upon the deceased, claimants have preferred this appeal. 5. The learned counsel for appellants contended that the Tribunal did not keep in view that the respondents have failed to adduce any evidence to substantiate their plea of contributory negligence. It was further submitted that as per Ex.P.12 - driving licence was issued on 6.1.1996 and the same is valid till 5.1.2016 and while so, Tribunal erred in saying that the licence expired on 5.1.2006 and the said finding is baseless. The learned counsel would further contend that the Tribunal erred in ignoring the evidence of injured eye witness - P.W.2 and the complaint lodged by P.W.2 - Ex.P.5. 6. Mr.K.S.Narasimhan, learned counsel appearing for respondents No.3 and 4 submitted that upon appreciation of evidence and taking note of the registration of the criminal case against the deceased Sampathkumar, Tribunal rightly apportioned 75 percent liability to deceased Sampathkumar and the said finding is based on evidence warranting no interference. In so far as quantum, learned counsel submitted that the quantum of compensation awarded is very reasonable. 7. On 25.2.2008, deceased Sampathkumar, P.W.2 -Rajendran and two other persons were proceeding in the Ambassador car bearing Regn.No.MSL.4900 from south to north. In his evidence, P.W.2 clearly stated that when they were proceeding in Coimbatore - Palladam road and when the car was nearing Shanthi Gears, lorry bearing Regn.No.TN.57.A.8699 driven by the 1st respondent in a rash and negligent manner came in the opposite direction and hit the car. In his evidence, P.W.2 clearly stated that when they were proceeding in Coimbatore - Palladam road and when the car was nearing Shanthi Gears, lorry bearing Regn.No.TN.57.A.8699 driven by the 1st respondent in a rash and negligent manner came in the opposite direction and hit the car. In the accident, deceased Sampathkumar sustained fatal injuries and all occupants of the car including P.W.2 - Rajendran sustained injuries. Immediately, after the accident, Sampathkumar and other occupants of the car, who sustained injuries, were admitted in K.G.Hospital. Sampathkumar succumbed to injuries on the same day. In the meanwhile, on 25.2.2008, based on complaint lodged by the lorry driver, F.I.R. (Ex.P.4) in Crime No.158 of 2008 of Sulur Police Station under Sections 279 and 337 IPC was registered against Sampathkumar, driver of the car. 8. In his evidence, P.W.2 has further stated that after the accident, he became unconscious and only after three days he regained his consciousness and continuing his treatment and went to Sulur Police Station on 24.3.2008 to lodge the complaint. P.W.2 himself sustained injuries in the accident and was taking treatment in the Hospital. Therefore, mere delay in lodging of the complaint by the injured occupants of the car cannot go against the claimants. 9. On perusal of Ex.P.4 - F.I.R, it is seen that in his complaint, 1st respondent -lorry driver stated that on 25.2.2008, when he was proceeding in the lorry near Shanthi Gears, the Ambassador car, which came in the opposite direction attempted to overtake a Tata Sumo and driven in a rash and negligent manner and hit against the lorry and in the accident, four occupants of the car sustained injuries. In his complaint, driver of the lorry further alleged that the driver of the car (Sampathkumar) was responsible for the accident. Upon consideration of evidence of P.W.2 and other evidence, Tribunal held that the accident was due to collision of both the vehicles. 10. Tribunal apportioned the 75 percent liability to the deceased mainly on the ground that the deceased Sampathkumar did not have a valid licence, which we want to refer to shortly. Ex.P.12 is the driving licence of Sampathkumar. The driving licence was issued on 6.1.1996. The Tribunal held that the driving licence of Sampathkumar expired on 5.1.2006 and on the date of accident on 25.2.2008, Sampathkumar did not have a valid driving licence. Ex.P.12 is the driving licence of Sampathkumar. The driving licence was issued on 6.1.1996. The Tribunal held that the driving licence of Sampathkumar expired on 5.1.2006 and on the date of accident on 25.2.2008, Sampathkumar did not have a valid driving licence. The Tribunal observed that the driver of the lorry had valid driving licence and pointing out that deceased Sampathkumar did not have a valid driving licence to drive the car, Tribunal apportioned the 75 percent liability to the deceased and 25 percent liability to the driver of the lorry. 11. In the counter affidavit, respondents have taken the plea of contributory negligence. The Tribunal accepted the plea of contributory negligence mainly on the grounds: (i) that the driving licence of the deceased Sampathkumar expired on 5.1.2006; and (ii) there is delay in lodging of complaint by the occupants of the car. As pointed out earlier, when all the occupants of the car sustained injuries, delay in lodging the complaint by P.W.2/occupants of the car cannot go against the claimants. When all the four occupants of the car sustained injuries and P.W.2 regained consciousness only after three days and continuing his treatment, they cannot be expected to go to the police station and lodge the complaint. That apart, Sampathkumar succumbed to injuries on the next day. Due to the accident, when the claimant's family was traumatised, they would not have thought of going to the police Station and lodging the complaint. 12. When respondents 3 and 4 have taken the plea of contributory negligence, burden lies upon them to substantiate the same by adducing evidence. It is pertinent to note that the driver of the lorry was not examined. No documentary evidence or independent evidence was adduced by the respondents to substantiate the plea of contributory negligence. In cases of tortuous liability, even though the recitals in the F.I.R. could be taken as a piece of evidence, FIR cannot be taken as a substantive evidence. In the absence of any independent evidence adduced as to the substantial plea of contributory negligence, in our considered view, the Tribunal erred in fastening 75 percent liability to the deceased. 13. The Tribunal appears to have apportioned 75 percent liability to the deceased mainly on the ground that the driving licence of deceased Sampathkumar expired on 5.1.2006. In the absence of any independent evidence adduced as to the substantial plea of contributory negligence, in our considered view, the Tribunal erred in fastening 75 percent liability to the deceased. 13. The Tribunal appears to have apportioned 75 percent liability to the deceased mainly on the ground that the driving licence of deceased Sampathkumar expired on 5.1.2006. According to the claimants, the driving licence of the deceased was valid till 5.1.2016 and therefore the deceased had a valid licence at the time of accident and while so the Tribunal erred in saying that the deceased did not have a valid driving licence. It was further submitted that the Tribunal ought to have taken note of the fact that the licence for light motor vehicle was for a period of twenty years and that the finding recorded by the Tribunal that the licence expired on 5.1.2006 is erroneous. We have perused Ex.P.12 - copy of driving licence of deceased. From Ex.P.12 - xerox copy of driving licence of deceased, the date of expiry of licence is not clear, whether it is 5.1.2016 or 5.1.2006. 14. Be that as it may, the fact remains that Sampathkumar had a driving licence and that he was not disqualified to drive the car. In the counter also, no specific plea was raised regarding expiry of the driving licence of deceased Sampathkumar. It is pertinent to note that during the cross examination of P.W.1, through whom, Ex.P.12 was marked, she was not questioned about the driving licence or its non-renewal. In the absence of specific plea and also question to P.W.1 about expiry of the driving licence the claimants did not have the opportunity of explaining the date of expiry of the driving licence. While so, Tribunal erred in holding that deceased Sampathkumar did not have a valid driving licence. In the absence of any definite evidence regarding expiry of driving licence, in our considered view, apportioning of 75% liability to deceased Sampathkumar cannot be sustained. 15. The accident was due to collision between two vehicles. To substantiate their case that accident was due to negligent driving of lorry driver, claimants have not produced the sketch prepared in the criminal case or photographs or any other evidence to show that the lorry driver was negligent. 15. The accident was due to collision between two vehicles. To substantiate their case that accident was due to negligent driving of lorry driver, claimants have not produced the sketch prepared in the criminal case or photographs or any other evidence to show that the lorry driver was negligent. P.W.2, who is an injured witness, has stated that the lorry came in a high speed and dashed against the Ambassador car in which himself the deceased and two others were travelling. Considering the evidence of P.W.2 and other circumstances, negligence is apportioned as 35 percent:65 percent i.e., 35 percent to deceased Sampathkumar and 65 percent to the lorry driver. Accordingly, respondents are liable to pay 65 percent of the compensation apportioned to them, as the collision is between heavy vehicle and a light motor vehicle. 16. In so far as quantum of compensation, deceased Sampathkumar studied B.E., and Ex.P.1 is the provisional certificate evidencing to show that he has the educational qualification and that he was working as Project Officer in Kumaraguru College of Technology, Coimbatore till 2006. The Administrative Officer of the said College (P.w.3) stated that Sampathkumar was working in their College from 3.7.2004 till 13.10.2006 as a Project Officer and he was getting salary at Rs.6,500/-per month. Ex.P.9 is the certificate issued by Kumaraguru College of Engineering. 17. As seen from Ex.P.2, deceased Sampathkumar and his father Vasudevan formed a partnership and running a textile industry in the name and style of Athanoor Amman Textiles by investing Rs.10,00,000/-and the capital is shared at 50 percent:50 percent. In his evidence, P.W.1 - claimant stated that her husband was earning Rs.25,000/-per month from out of textile business. 18. Even though the 1st claimant stated that Sampath Kumar was getting more than Rs.25,000/- per month the claimants have not produced any income-tax returns. Based upon the evidence of P.W.1 and Ex.P.9 -salary certificate issued by Kumaraguru College of Technology and also the educational qualification of deceased Sampathkumar, Tribunal had taken the income of the deceased at Rs.8,000/-per month. Since deceased Sampathkumar was a qualified Engineer, he would have easily earned monthly income of Rs.8,000/-and therefore the income fixed by the Tribunal at Rs.8,000/- per month is maintained. The Tribunal has taken 1/5th for personal expenses, which comes to Rs.1,600/-per month and accordingly the Tribunal calculated loss of contribution to the family at Rs.6,400/- and the same is maintained. 19. The Tribunal has taken 1/5th for personal expenses, which comes to Rs.1,600/-per month and accordingly the Tribunal calculated loss of contribution to the family at Rs.6,400/- and the same is maintained. 19. In Ex.P.12 - driving licence, age of the deceased is stated as 26.08.1975 i.e., he was aged 33 years on the date of accident. As per Second Schedule of Motor Vehicles Act, proper multiplier to be adopted is 17, which the Tribunal has also adopted and the same is maintained. 20. Loss of earnings is calculated at Rs.13,05,600/-. In so far as conventional damages, Tribunal has awarded Rs.5,000/- towards transport expenses, Rs.15,000/- towards loss of love and affection, Rs.20,000/- towards loss of consortium; Rs.2,000/- towards loss of articles and Rs.10,000/- towards funeral expenses. The 2nd claimant - Adharsh Vishnu lost the love and affection of his father at the young age of three years. Claimants 3 and 4, parents of deceased, have lost love and affection of their son at their old age. Considering the age of the second minor claimant and the age of the parents of deceased, a sum of Rs.1,00,000/-is awarded towards loss of love and affection. The compensation awarded for conventional damages by the Tribunal under other heads viz.,Rs.5,000/- towards transport expenses, Rs.20,000/-towards loss of consortium; Rs.2,000/- towards loss of articles and Rs.10,000/-towards funeral expenses is reasonable and hence the same are maintained. 21. As pointed out earlier, deceased Sampathkumar was admitted in the Hospital and succumbed to the injury on the next day. As per Ex.P.15 -medical bills, the claimants have sustained a sum of Rs.31,772.30ps. towards medical expenses and the same has to be awarded to the claimants. 22. Thus, the compensation awarded by the Tribunal is enhanced to Rs.14,74,372/-, rounded off to Rs.15,00,000/-, the details of which are as under: Loss of contribution to the family: Rs.13,05,600.00 medical expenses: Rs. 31,772.00 Loss of consortium: Rs. 20,000.00 Loss of love and affection: Rs. 1,00,000.00 Transport: Rs. 5,000.00 Damage to articles: Rs. 2,000.00 Total: Rs.14,74,372.00 rounded off to: Rs.15,00,000.00 The total compensation arrived at: Rs.15,00,000.00 Less: 35% of Total compensation : Rs. 5,25,000.00 Balance 65% of Compensation: Rs.9,75,000.00 23. In the result, this appeal is partly allowed. The compensation amount awarded to the claimants is enhanced to Rs.9,75,000/-, payable with interest at the rate of 7.5% per annum. 2,000.00 Total: Rs.14,74,372.00 rounded off to: Rs.15,00,000.00 The total compensation arrived at: Rs.15,00,000.00 Less: 35% of Total compensation : Rs. 5,25,000.00 Balance 65% of Compensation: Rs.9,75,000.00 23. In the result, this appeal is partly allowed. The compensation amount awarded to the claimants is enhanced to Rs.9,75,000/-, payable with interest at the rate of 7.5% per annum. The said amount of Rs.9,75,000/-shall be apportioned to the claimants as under: The 1st claimant-wife: Rs.5,00,000.00 The 2nd claimant-minor son: Rs.2,75,000.00 The 3rd and 4th claimants-parents : Rs.2,00,000.00 (each Rs.1,00,000/-) The third respondent - Insurance Company has already deposited Rs.3,39,000/-. The third respondent shall deposit the balance enhanced compensation along with proportionate interest within a period of eight weeks from the date of judgment. On such deposit, claimants 1, 3 and 4 are permitted to withdraw their respective shares of compensation along with accrued interest thereon. In so far as compensation awarded to the minor - 2nd claimant, the same shall be deposited in a nationalised Bank till the minor attains majority and the 1st claimant -wife of the deceased is permitted to withdraw the interest accrued once in three months directly from the Bank till the minor attains majority. However, there is no order as to costs.