JUDGMENT : 1. The Court: Binapani, the appellant in FMA No. 1931 of 2003 and the insurance company, the appellant in FMA 269 of 2004, both are aggrieved by the award of the Motor Accidents Claim Tribunal, Alipore dated August 30, 2003 in MACC No. 569 of 2002. Four persons (Anumita Paul, Aritra Paul, Ankita Paul and Binapani Paul) together filed an application under s. 166 of the Motor Vehicles Act, 1988 in the claims tribunal on September 20, 2002. They claimed fault liability compensation for the accidental death of one Dulal Paul. It was stated that Anumita, Aritra, Ankita and Binapani were Dulal's wife, minor son, minor daughter, and mother respectively. 2. Case stated in the s.166 application was this:-- "On July 21, 2002 at about 3.45 p.m. Dulal was driving his Toyota Qualis No. WB-02M-4752 on NH6 (Bombay Road). He was proceeding from "Salap side towards Alampur side" at a very low speed. An oil tanker No. WB-11-8777 was coming from opposite direction "at a terrific high speed, recklessly endangering human life and safety of others." Near one Pakuria Shyama Casting the oil tanker dashed the Qualis "with a great force and violating the Traffic/Road Rules." Dulal sustained severe injuries that caused his death. Rash and negligent driving of the oil tanker was the sole cause of the accident. Dulal was the family's breadwinner. He was a businessman and at the date of his death he was 41. His income for the assessment year 2001-02 was Rs. 2,61,840 and he paid Rs. 52,552 tax. The owner of the oil tanker and the insurance company whose a valid policy covered the oil tanker and Bajaj Allianz General Insurance Company Ltd., whose a valid policy covered the Qualis, became liable to pay them Rs. 26,40,000 compensation with interest." 3. The insurance company filed a written statement. Bajaj Allianz also filed a written statement. The owner of the oil tanker did not file any written statement. 4. The claims tribunal framed the following issues: "(1) Is the case maintainable at all in its present form and prayer? (2) Whether the deceased involved in the accident that occurred on 21.7.02 at 3- 45 P.M.? (3) Is the vehicles, a Tata Qualis & a Tanker bearing No. WB/02/M-4752 and WB. 11-8777 involved in the accident and is the said vehicle at all insured under The United India Insurance Co. Ltd? (2) Whether the deceased involved in the accident that occurred on 21.7.02 at 3- 45 P.M.? (3) Is the vehicles, a Tata Qualis & a Tanker bearing No. WB/02/M-4752 and WB. 11-8777 involved in the accident and is the said vehicle at all insured under The United India Insurance Co. Ltd? (4) Is the driver of the said vehicle responsible for rash and negligent driving? (5) Is the O.P. 2(a) Bazaz Allianz General Insurance Co. a party to the instant case? (6) Are the applicants entitled to any compensation? If so, to what extent? (7) To what other relief/relief’s, the applicants are entitled to?" 5. Dulal's wife Anumita testified as PW1. An eyewitness to the accident testified as PW2. One Ram Dular Tewari testified as D.W. 1. The claimants exhibited, inter alia, copies of FIR, seizure list, charge-sheet and Dulal's Sarals for the assessment years 2000-01, 2001-02 and 2002-03. The claims tribunal held as follows:-- "Oral and documentary evidence proved that Dulal was killed in the accident as claimed by the claimants; that the accident happened due to the rash and negligent driving of the oil tanker by its driver who failed to prove that he was not responsible for the accident; that the oil tanker was covered by a valid policy issued by the insurance company; and that Dulal was 41. Hence multiplier 15 would be applicable. The claimants did not seek any compensation from Bajaj Allianz. Dulal's income-tax return for the assessment year 2002-03 showed that his annual income was Rs. 3,12,557. Rs. 1,03(sic) income from house property should be excluded. Hence his actual income was Rs. 2,09,436. 1/3 should be deducted for his personal and living expenses. Rs. 9,500 should be granted for funeral expenses, loss of consortium and loss of estate. The claimants should be paid Rs. 21,03,860 compensation. The insurance company would pay 9% p.a. interest only if it failed to pay compensation within the time mentioned in the award." 6. As to apportionment, the claims tribunal ordered that Dulal's mother, Bina Pani, would get Rs. 2 lakh, and that the balance would go to Dulal's wife and minor children. The CAN has been filed stating that during pendency of the appeal Dulal's minor son attained majority. 7. Mr. As to apportionment, the claims tribunal ordered that Dulal's mother, Bina Pani, would get Rs. 2 lakh, and that the balance would go to Dulal's wife and minor children. The CAN has been filed stating that during pendency of the appeal Dulal's minor son attained majority. 7. Mr. Das appearing for the insurance company has submitted as follows:-- "Testimonies of PW2 and D.W. 1 proved that there was a head-on collision between the Qualis and the oil tanker. Dulal was equally responsible for the accident. Hence the claims tribunal ought not to have directed the insurance company to pay more than 50% of the compensation. The claims tribunal ought to have excluded incomes from salary and other sources and the proportionate tax paid for the income from business. The insurance company finds little to contest the future prospects and interest issues raised in Binapani's appeal. It has no role to play in her apportionment grievance, the other issue raised in her appeal." 8. Mr. Banik appearing for Binapani has submitted as follows:-- "The insurance company did not give any evidence of contributory negligence. D.W. 1 testified to save himself and his employer, the owner of the oil tanker. His testimony is inconsistent and unreliable. Testimony of PW2 proved that the accident happened due to the rash and negligent driving of the oil tanker. The claims tribunal rightly included incomes from house property and other sources, though it ought to have deducted the tax amount. Binapani was entitled to share the compensation equally with the other claimants." 9. Mr. Roy appearing for Dulal's wife and two children has submitted as follows:-- "It was not a case of contributory negligence, because the unshaken testimony of PW2 was that the accident happened due to the rash and negligent driving of the oil tanker. D.W. 1 was an interested witness and hence he should be disbelieved. The insurance company did not produce sketch map, expert opinion on damaged vehicles and other materials to prove that Dulal's rash and negligent driving of his Toyota Qualis contributed to any extent to the happening of the accident. The claims tribunal rightly determined Dulal's annual income. The amount of compensation should be apportioned on the basis of Binapani's extent of dependence on Dulal." 10. Mr. Das, Mr. Banik and Mr. Roy have cited to us the following decisions:-- "(i) on witness:- Machindranath Kernath Kasar Vs. The claims tribunal rightly determined Dulal's annual income. The amount of compensation should be apportioned on the basis of Binapani's extent of dependence on Dulal." 10. Mr. Das, Mr. Banik and Mr. Roy have cited to us the following decisions:-- "(i) on witness:- Machindranath Kernath Kasar Vs. D.S. Mylarappa and Others, (2008) 13 SCC 198 ; (ii) on contributory negligence:- Pramodkumar Rasikbhai Jhaveri Vs. Karmasey Kunvargi Tak and Others, (2002) 6 SCC 455 ; Bijoy Kumar Dugar Vs. Bidyadhar Dutta and Others, (2006) 3 SCC 242 ; T.O. Anthony Vs. Karvarnan and Others, (2008) 3 SCC 748 : T.O. Anthony Vs. Karvarnan and Others, (2008) 3 SCC 748 ; Renuka Devi H. v. Bangolore Metropolitan Transport Corporation & Ors., [2008(3) ALL MR 838 (S.C.)]; and Usha Rajkhowa and Others Vs. Paramount Industries and Others, (2009) 14 SCC 71 : Usha Rajkhowa and Others Vs. Paramount Industries and Others, (2009) 14 SCC 71 ; (iii) on income:- Mrs. Helen C. Rebello and Others Vs. Maharashtra State Road Transport Corpn. and Another, (1999) 1 SCC 90 ; and New India Assurance Company Ltd. Vs. Yogesh Devi and Others, (2012) 3 SCC 613 ; and (iv) on apportionment:- D. Shanmukha Sundaramma Vs. D. Suneetha and Others, (2009) 3 SCC 787 : D. Shanmukha Sundaramma Vs. D. Suneetha and Others, (2009) 3 SCC 787 ." 11. The insurance company has contended that though it was a case of contributory negligence, the claims tribunal directed it to pay the claimants the whole of the amount of compensation, when it could not be asked to pay more than 50% of the amount. The contention of the insurance company is based entirely on the testimony of D.W. 1, the driver of the oil tanker. 12. D.W. 1 was not a party to the case. The owner did not file any written statement. This means that he did not state any case in defence. D.W. 1 was not summoned by the claims tribunal. He testified that he was authorised by the owner of the oil tanker to testify and he produced an authority. The owner of the oil tanker did not contest the case in any manner. D.W. 1 was examined in-chief, evidently, by the insurance company; and he was cross-examined by the claimants. 13. He testified that he was authorised by the owner of the oil tanker to testify and he produced an authority. The owner of the oil tanker did not contest the case in any manner. D.W. 1 was examined in-chief, evidently, by the insurance company; and he was cross-examined by the claimants. 13. On July 29, 2003 the claims tribunal adjourned hearing until August 7, 2003 at the instance of the insurance company for examination of D.W. s and argument. The insurance company again prayed for adjournment on August 7, 2003 and, accordingly, hearing was fixed for August 20, 2003. On August 20, 2003 D.W. 1 was examined and cross-examined and the claims tribunal heard the argument in part. Bajaj Allianz permitted to cross-examine D.W. 1 on August 25, 2003, however, did not cross-examine D.W. 1. 14. The above-noted facts and orders of the claims tribunal reveal that D.W. 1 was examined as a witness by the insurance company. D.W. 1 testified that the accident happened, because Dulal drove the Toyota Qualis rashly and negligently with a view to overtaking a trailer running in front of him. 15. PW2 was examined as an eyewitness to the accident. He testified that the accident happened due to the rash and negligent driving of the oil tanker coming at high speed from the opposite direction. He also testified that Dulal was driving the Toyota Qualis at low speed and keeping left side of the highway through which at a time four vehicles could ply. The insurance company cross-examined PW2 extensively. PW2 remained unshaken. 16. The insurance company did not plead any case in defence. No contributory negligence issue was framed. It examined D W1 for proving a case which was not pleaded in its written statement. This seems to be the reason why the defence case of overtaking was not put to PW2 when he was cross-examined. The insurance company sought to prove a defence case which had never been put to the relevant witness the claimants examined in proof of their case. 17. The contributory negligence aspect was not argued in the claims tribunal. The aspect and consequent issue have been raised for the first time in the appeal in this court. We are unable to see how anything stated in Machindranath, cited by Mr. Das, is of any assistance on the issue. 17. The contributory negligence aspect was not argued in the claims tribunal. The aspect and consequent issue have been raised for the first time in the appeal in this court. We are unable to see how anything stated in Machindranath, cited by Mr. Das, is of any assistance on the issue. Hence we are unable to accept that by not ordering a proportionate deduction for Dulal's contributory negligence the claims tribunal committed an error. 18. Assuming that our foregoing opinion on the contributory negligence issue is wrong, we proceed to examine the merits of the contention raised before us. 19. While relying on Bijoy Kumar Dugar, T.O. Anthony and Renuka Devi, Mr. Das has argued that the fact of head-on collision between the Toyota Qualis and the oil tanker testified by both PW2 and D.W. 1 should of course lead to a conclusion that drivers of both the vehicles contributed to the happening of the accident; relying on Promodkumar and Usha Rajkhowa, Mr. Banik has argued that evidence of mere head-on collision between the two vehicles was not sufficient to prove Dulal's contributory negligence to the happening of the accident. 20. In Promodkumar the Supreme Court held as follows: "8....The question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as "negligence". Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence" it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an "author of his own wrong"." 21. In Bijoy Kumar Dugar, on the facts of that case the Supreme Court held, "MACT, in our view, has rightly observed that had the knocking been on one side of the car, the negligence or rashness could have been wholly fastened or attributable to the driver of the bus, but when the vehicles had a head-on collision, the drivers of both the vehicles should be held responsible to have contributed equally to the accident." 22. In T.O. Anthony, on the facts of that case the Supreme Court held, "But the fact that there was a head-on collision could not be ignored. Evidence shows that the appellant was not diligent, as he neither slowed down the bus nor swerved to his left, on seeing the oncoming bus. On the facts and circumstances we are of the view that the appellant was also partly responsible for the accident and we fix the responsibility at 25 per cent on the appellant and 75 per cent on respondent No. 1." 23. In Renuka Devi, on the facts of that case the Supreme Court held, "Looking to the finding of the Tribunal, we also find that the Tribunal also came to the conclusion of fact that the respondent was also negligent and his responsibility was more, that is, when a scooty was going on the left side of the road, the driver of a heavy vehicle ought to have utilised the road or when taking a turn towards east he ought to have observed the light vehicles that were going on the left side and then take a turn and not suddenly come and taken a turn." 24. In Usha Rajkhowa, on the facts of that case the Supreme Court held, "we find that there was absolutely no evidence to suggest that there was any failure on the part of the Car driver to take any particular care or that he had breached his duty in any manner. Such breach on his part had to be proved by Insurance Company as it was its burden and for that, the Panchanama of the spot, showing tyre marks caused by brakes, the Panchanama of the damaged car and the truck could have been brought on record. The Insurance Company has obviously failed to discharge its burden." 25. Our reading and understanding of the above-noted decisions cited to us is that in none of them the Supreme Court stated any principle that once evidence of a head-on collision between two motor vehicles is given, an inference has to be drawn of course that it was a case of contributory negligence. All the cases in which the decisions were given were decided on the basis of their respective proven facts. Both the facts of contributory negligence and extent of contribution were examined in the context of the evidence. 26. All the cases in which the decisions were given were decided on the basis of their respective proven facts. Both the facts of contributory negligence and extent of contribution were examined in the context of the evidence. 26. We are, therefore, of the view that it cannot be accepted as a principle that once evidence of a head-on collision between two motor vehicles is given, an inference must be drawn that it was a case of contributory negligence. Whether it was a case of contributory negligence, and if so, whose contribution was what - both these facts are to be decided in every case on the basis of evidence given in it. 27. In this case, PW2 did not testify about Dulal's any contribution to the accident. His testimony that the oil tanker dashed Dulal's Qualis on its front-right was corroborated by the testimony of D.W. 1. It is true that while D.W. 1 testified that left side of the Qualis was also damaged, having been dashed against the trailer that the Qualis was trying to overtake, PW2 testified that he had no idea whether left side of the Qualis was also damaged. The FIR, seizure lists, and the charge-sheet do not provide any evidence of the nature of the damage Dulal's Qualis suffered. 28. D.W. 1 testifying about Dulal's overtaking process remained silent about his manner of driving the oil tanker. There is nothing to show that he took all reasonable care to avoid the accident. Cars overtaking heavy vehicles on National Highways is not an uncommon feature. Responsibility of driver driving a heavy vehicle is greater. When D.W. 1 saw Dulal in the process of overtaking, he did not give Dulal sufficient space. There is no evidence that he stopped his oil tanker. Rather the seizure list (Ex. 2) shows that the oil tanker was seized on July 23, 2002 at 9.35 a.m. at the police station. The charge-sheet (Ex. 3) shows that D.W. 1 was arrested on July 22, 2002. This can lead to a reasonable inference that after the accident D.W. 1 fled with the oil tanker. This is also the testimony of PW2. 29. On these facts, we are unable to accept that testimony of D.W. 1 proved that Dulal equally contributed to the happening of the accident. This can lead to a reasonable inference that after the accident D.W. 1 fled with the oil tanker. This is also the testimony of PW2. 29. On these facts, we are unable to accept that testimony of D.W. 1 proved that Dulal equally contributed to the happening of the accident. Our considered opinion is that the uncorroborated testimony of overtaking of D.W. 1, a highly interested witness, cannot lead to a conclusion that it was a case of contributory negligence. Testimony of PW2, an independent witness, and whose testimony was substantially corroborated by D.W. 1 and Exs. 2 and 3, inspires confidence; and it leads to a conclusion that D.W. 1, the driver of the oil tanker, was wholly responsible for the accident. 30. We, accordingly, hold that the accident happened due to the rash and negligent driving of the oil tanker by D.W. 1. 31. In proof of Dulal's annual income the claimants produced copies of his Sarals for the assessment Years 2000-01, 2001-02 and 2002-03, which were marked Exs. 12, 12/1, 12/2. The last Saral (Ex. 12/2) was submitted by Dulal's wife, Anumita. The Sarals showed that Dulal was a resident individual assessee. In Exs. 12 and 12/1 his incomes were shown from house property, business and other sources. But in Ex 12/2 his incomes were shown from salary, house property, business and other sources. 32. The claims tribunal determined Dulal's income on the basis of Ex 12/2 (Saral for the assessment year 2002-03). It excluded from the gross income only Rs. 1,03,121 income from house property. It included Rs. 48,000 income from salary and Rs. 21,216 income from other sources, and did not deduct Rs. 65,586 tax paid from Rs. 3,01,000 taxable income. 33. Relying on Yogesh Devi, Mr. Das has argued that the claims tribunal ought to have excluded Rs. 48,000 income from salary, Rs. 21,216 income from other sources and Rs. 21,000 proportionate tax on Rs. 1,40,220 income from business. On the other hand, Mr. Banik has argued that since salary was received by Dulal for service he gave to his business and the income from other sources disappeared after his death, they were not to be excluded, though tax paid was to be deducted. 34. Relying on Helen C. Rebello, Mr. Roy adopting Mr. 1,40,220 income from business. On the other hand, Mr. Banik has argued that since salary was received by Dulal for service he gave to his business and the income from other sources disappeared after his death, they were not to be excluded, though tax paid was to be deducted. 34. Relying on Helen C. Rebello, Mr. Roy adopting Mr. Banik's submissions has submitted that the claims tribunal was not required to exclude Dulal's salary and other sources incomes from Dulal's gross income. 35. In Yogesh Devi, Yogesh, the wife of the victim of a motor vehicle accident, was one of the claimants. One of the questions the Supreme Court was considering was what was the victim's monthly income. There the victim was the owner of three vehicles (minibuses) and certain agricultural land. The claims tribunal held that the victim was earning Rs. 3,900 by working as a driver of one of buses and Rs. 7,380 from the remaining buses and agricultural land. In appeal the High Court held that victim's income was Rs. 24,000 per month. 36. In Yogesh Devi, the Supreme Court notionally fixing Rs. 10,000 salary of manager the claimants would be required to engage to carry on the business held, "In the normal course the claimants are expected to adduce evidence as to what would be the quantum of depletion in the income from the abovementioned asset on account of the abovementioned factors. Unfortunately, no such evidence was led by the claimants." And we do not find how things said in para. 18 of Hellen report, relied on by Mr. Roy, is of any assistance for determining the income issue in this case. 37. The principle is whether a particular amount the victim was earning when he was alive and a substantial part whereof he was contributing to his family for his dependants has disappeared with his death in the motor vehicle accident in question. The contribution which is no longer available to the claimants is a part of their loss of dependency, and no part of the income which has not been affected in any manner by the death of the victim can be a part of the loss of dependency. 38. In this case, during his lifetime Dulal did not show in his tax returns that he used to earn any amount by way of salary from any source. 38. In this case, during his lifetime Dulal did not show in his tax returns that he used to earn any amount by way of salary from any source. It is only in the returns filed after his death by his wife that Rs. 48,000 was shown as his salary income. No evidence of the source of salary was given. The argument that Dulal was receiving salary for giving service to his own business is based on no evidence. Hence it is not acceptable that Dulal used to earn any amount from any source as salary. We have no doubt that Rs. 48,000 salary was shown in the return filed after Dulal's death by his wife only for the purpose of claiming a higher amount of compensation. The claims tribunal ought to have excluded this amount. 39. No evidence of the other sources from which Dulal was earning in every year some amount was given. The argument that Dulal was earning the amount by letting out some property with plant and machinery is not acceptable; for there is no evidence of any earnings from such a source. The claimants have not given any evidence that with Dulal's accidental death Rs. 21,216 income from other sources shown in Ex 12/2 disappeared. Hence we are of the view that the claims tribunal ought to have excluded this amount as well. 40. In Ex 12/2 Dulal's annual income from business was shown as Rs. 1,40,220. Proportionate tax paid on this amount was Rs. 21,000 (approx). Hence the claimants' actual annual loss of dependency was Rs. 1,40,220 - Rs. 21,000 = Rs. 1,19,220 -Rs. 39,740(1/3 of Rs. 1,19,000) = Rs. 79,480. 41. The claims tribunal chose the multiplier 15 on the basis that at the date of his death Dulal was 41. There is no dispute that the claims tribunal was to choose the multiplier according to column 4 of the table given in Sarla Verma; for it was a fault liability claim case. According to the table, the appropriate multiplier was 14, not 15. 42. As to future prospects, Mr. Das has fairly conceded that in view of the decision of the Supreme Court in Sanjay Verma Vs. Haryana Roadways, (2014) 3 SCC 210 : Sanjay Verma Vs. Haryana Roadways, (2014) 3 SCC 210 the claimants are entitled to 30% addition on account of future prospects. 43. As to apportionment, Mr. 42. As to future prospects, Mr. Das has fairly conceded that in view of the decision of the Supreme Court in Sanjay Verma Vs. Haryana Roadways, (2014) 3 SCC 210 : Sanjay Verma Vs. Haryana Roadways, (2014) 3 SCC 210 the claimants are entitled to 30% addition on account of future prospects. 43. As to apportionment, Mr. Banik and Mr. Roy have finally made the following submissions. Binapani has already withdrawn Rs. 5 lakh, Anumita and her two children together have withdrawn Rs. 9 lakh. In view of this decision the claimants are entitled to Rs. 14,56,036 and 9% p.a. interest on the amount from the date of filing of the application for compensation till the payment date or dates. The claimants are ready to share the amount now payable equally. 44. The above-noted proposal settles the apportionment issue very easily. Hence it is not necessary for us to examine whether any principle stated in D. Shanmukha, cited by Mr. Roy, applies to the case. For these reasons, we partly allow both the appeals and dispose of the CAN ordering as follows. The fact that Aritra attained majority during pendency of the appeal shall be incorporated in the cause papers. The award of the claims tribunal is modified substituting Rs. 14,56,036 for Rs. 21,03,860. The insurance company shall pay the claimants 9% p.a. interest from September 20, 2002 till the payment date or dates. The Registrar General shall pay the four claimants according to this order from the deposit in equal shares. Balance he shall pay the insurance company with accrued interest. Compliance within four weeks from the date the records are sent to the department. No costs. Certified xerox.