Judgment Bhaskar Bhattacharya, CJ.—These two appeals were heard analogously as those arise out of a common award dated January 31, 2002 passed by the Motor Accident Claims Tribunal and Judge 12th Court, City Civil and Sessions Court at Ahmedabad, in Motor Accident Claim Petition No. 1269 of 1998 by which the Tribunal awarded a total sum of Rs. 8,13,000/- as compensation with interest at the rate of 12% per annum from the date of filling the application till realization. 2. Being dissatisfied, the Insurance Company has preferred the First Appeal No. 1554 of 2002 while the other appeal being First Appeal No. 1242 of 2003 has been filed by the claimants for enhancement of the amount. 3. In the claim-application, the claimants are four in number. The claimant No. 1 is the widow of the victim, the claimant No. 2 is the minor son of the victim and the claimant Nos.3 and 4 are the mother and the father of the victim respectively. In the claim-application under Section 166 of the Motor Vehicles Act, the driver of the vehicle was made opponent No. 1, the owner of the involved vehicle was made opponent No. 2 and the Oriental Insurance Co. Ltd, the insurer of the vehicle, was made opponent No. 3. 4. The case made out by the claimants was as follows:- 4.1 On May 7, 1998 on the National Highway near Dudhsagar Dairy, Mehsana town, at about 3-00 in the early morning, the victim, Jagdishkumar Ramchandra Vyas, had fallen down from a running motor vehicle being a jeep bearing registration No. GJ-9B-1309. The total amount claimed was Rs. 12 lakh. The owner and the driver of the vehicle did not contest the proceeding but it was the Insurance Company, the opponent No. 3, which resisted the claim-application and, according to the Insurance Company, in absence of appropriate evidence with regard to driving licence of the driver as well as genuineness of the allegation of negligence, the claim- application was not maintainable. It appears from the record that in the claimapplication, it was alleged that the victim was acting as a broker in the business of fabric in Maskati Market. Over and above, he was also working at STD Telephone Booth owned by his younger brother and his annual income was Rs. 65,000/-. 5. It appears from the record that in the claimapplication, it was alleged that the victim was acting as a broker in the business of fabric in Maskati Market. Over and above, he was also working at STD Telephone Booth owned by his younger brother and his annual income was Rs. 65,000/-. 5. The brief detail of the accident was as follows:— 5.1 The victim had left from his house at Panditji-ni-pole, Sarangpur, Ahmedabad, to his father-in-law’s house to meet his wife and minor son. He had come to village Gada (Balotra) Rajasthan, by sitting in a jeep bearing the registration No. GJ-9B-1309, which was being driven by the opponent No. 1 under the ownership of the opponent No. 2. On May 7, 1998, the victim and opponent No. 1 had left village Gada at about 6.00 to 7.00 in the evening to return to Ahmedabad. The opponent No. 1 was driving the jeep and the victim sat by his side in the front-side seat. While they were passing through the Highway opposite to Mehsana Dudhsagar Dairy at about 3.00 hours on May 7, 1998, due to the negligent driving of the opponent No. 1 with full speed and taking sharp turn without bothering for the ditches on the road, the victim had fallen down from the jeep, as a result, he was seriously injured and died in the hospital. A complaint was also lodged in the police station by the opponent No. 1 regarding the incident and a panchnama of the accident was drawn. The accident occurred, according to the claimants, due to total carelessness and negligent driving of the driver. The victim was aged 27 years at the time of accident. 6. At the time of hearing, the widow of the victim gave evidence supported by her brother-in-law. Both of them admitted that they were not the eyewitnesses of the accident and only the driver and the victim were in the jeep. They gave evidence in support of the income of the victim. 7. 6. At the time of hearing, the widow of the victim gave evidence supported by her brother-in-law. Both of them admitted that they were not the eyewitnesses of the accident and only the driver and the victim were in the jeep. They gave evidence in support of the income of the victim. 7. The learned Tribunal below, as indicated earlier, by the award impugned partly allowed the claim-application after taking into consideration the fact that the victim had a shop room, a part of which was also let out by him on lease in the year 1994 and further that the victim, two years prior to the accident, had even purchased immovable property in his own name at the cost of Rs. 1 lakh. 8. After hearing the learned counsel for the parties and after going through the materials on record, I find that the Tribunal assessed the amount of compensation in the following way:— Rs. 7,68,000/- loss of earning capacity at the rate of Rs. 4,000/- a month and applying multiplier of 16. Rs. 20,000/- loss of consortium Rs. 20,000/- loss of estate Rs. 5,000/- funeral and misc. expenses. Rs. 8,13,000/- Total 9. In arriving at the above conclusion, the Tribunal held that the potential earning capacity of the victim was Rs. 6,000/- as he used to act as a broker in the business of fabrics. He had also a shop room, a part of which was let out. At the same time, he also used to get Rs. 3000/- from STD Booth owned by his brother and payment of such salary has been reflected in Income Tax Return, though the actual name of victim was not recorded in the Income Tax Return. 10. Therefore, the first question that arises for determination in these two appeals is, whether the negligent act on the part of the driver has been proved as the proceedings are under Section 166 of the Act. 11. It appears that in the jeep there were only two persons, the driver and the victim. The victim was a matured adult having business and was also an owner of immovable property. 11. It appears that in the jeep there were only two persons, the driver and the victim. The victim was a matured adult having business and was also an owner of immovable property. It is nobody’s case that he was thrown out of the vehicle by somebody, but, according to the claimants, due to the fact that the driver was driving the vehicle with speed and there were ditches on the road, the victim had fallen out of the jeep. 12. In my opinion, in the vehicle, there being no other person and one of them having died, the driver of the vehicle was the most important witness. He was made party but he did not appear to controvert the allegation of negligent driving with high speed. At the same time, I also cannot lose sight of the fact that a driver driving a jeep has no duty to see that any occupant of the vehicle does not fall out of the vehicle unless the occupant appears to be a child or minor. Therefore, in this case, the presumption of contributory negligence on the part of the victim should be drawn. The accident occurred at 3.00 hours in the night and most probably, the victim had fallen asleep, as a result, he had fallen down of the jeep. It is not a case where the vehicle capsized or any damage was caused to it. 13. In my opinion, the victim had also a duty to take care of himself when he sat on the front seat. He could easily sit on the rear seat where there were doors. It does not appear from the evidence on record that there was any damage to the jeep. In such circumstances, after taking into consideration the fact that the driver has not denied the allegation of negligent driving and at the same time, no other evidence regarding the fate of criminal case against the driver or evidence given therein, not having been brought on record, it is a fit case where contributory negligence of 50% of the victim should be adopted. Allegation of negligence having been specifically made, the driver should have denied such allegation by appearing as witness and offering himself for cross-examination by the claimants. I have already pointed out that the victim being a matured businessman had also a duty to take reasonable precaution for protecting himself. 14. Allegation of negligence having been specifically made, the driver should have denied such allegation by appearing as witness and offering himself for cross-examination by the claimants. I have already pointed out that the victim being a matured businessman had also a duty to take reasonable precaution for protecting himself. 14. As regards the amount of compensation, having regard to the fact that two years prior to accident, the victim purchased immovable property worth Rs. 1 lakh in his own name and at the same time, he had a shop room in his name, the income of Rs. 65000/- per annum cannot be said to be unreasonable and the amount of compensation calculated by the learned Tribunal below is also quite in conformity with the law. 15. I, therefore, do not find any reason to interfere with the figure of compensation arrived at by the Tribunal below. However, as indicated earlier, the same should be reduced by 50% for the contributory negligence of the victim. I further find that the award having been passed in the month of January 2002, interest should be at the rate of 12% per annum from the date of filing application till December 31, 1999 and thereafter, at the rate of 9% per annum. I, however, do not disturb the other conventional amounts awarded by the Tribunal below. 16. The appeal filed by the Insurance Company being First Appeal No. 1554 of 2002 is, thus, partly allowed and the one filed by the claimants, being First Appeal No. 1242 of 2003 is dismissed. If the amount awarded by the Tribunal has not been fully paid over to the claimants and is invested in any Fixed Deposit, the Tribunal below is directed to calculate and pay the amount of compensation to the claimants as per the assessment made by this Court and refund the balance amount to the Insurance Company. However, if the entire amount has already been paid over to the claimants, the claimants are directed to refund the amount in excess of the compensation assessed by this Court within two months from today. 16.1 In the facts and circumstances, there will be, however, no order as to costs. Further Order After this judgment was pronounced, the learned advocate appearing on behalf of the claimants prays for stay of operation of this judgment. 16.1 In the facts and circumstances, there will be, however, no order as to costs. Further Order After this judgment was pronounced, the learned advocate appearing on behalf of the claimants prays for stay of operation of this judgment. The Tribunal will not act in accordance with this judgment for a period of two months from today to enable the claimants to approach the higher forum.