JUDGMENT & ORDER : Dissatisfied with the sum of Rs.11,91,250/- awarded by the learned Member, Motor Accident Claims Tribunal, West Tripura, Agartala in his judgment dated 27-2-2015 of T.S.(MAC) No. 101 of 2011, this appeal has been preferred by the appellant-claimants through the appellant No. 1 for enhancement of the compensation. 2. The material facts are hardly in dispute. On 4-3-2011 at about 1 PM, one Laxman Saha (now deceased), riding in a motor bike bearing registration No. TR-01L-8327, was proceeding from Champaknagar towards Teliamura by the left side along Assam-Agartala Road when a truck bearing registration No.TR-01B-1749 forcefully hit one side of the motor bike and flung him to road thereby causing serious multiple injuries on his body. He was rushed to Teliamura Hospital but was ultimately taken to GBP Hospital, Agartala for better treatment. He, however, succumbed to his injuries on the same day. It is the case of the appellants that the accident was caused by the rash and negligent driving of the truck by its driver. Teliamura Police Station registered Case No.18/2011 against the driver U/s 279/304-A IPC. The appellants thereafter filed the claim petition claiming a compensation of Rs.56,15,000/- by impleading the owner of truck and the insurer, who are arraigned in this appeal as respondent No. 1 and respondent No. 2 respectively. According to the appellants, the deceased, who was 35 years old, was carrying on the wholesale business in rice and garments with an income of Rs.60,000/- per month at the time of the accident. He is survived by his wife and his two minor daughters, i.e. the appellant Nos. 1, 2 and 3 herein. 3. The claim petition was contested by both the owner of the truck (respondent 1) and the insurer (respondent 2). In her written statement, the respondent No. 1 denied the claim of the appellants and attributed the cause of the accident to the negligent driving of the motor bike by the deceased. In any case, she asserted that the vehicle was insured with the respondent No. 2, who was liable to satisfy any award passed by the Tribunal and not by her. The insurer-respondent, in its written statement, denied any liability as there was no negligence on the part of the driver of the truck in that accident. It also disputed the age and income of the deceased. The insurer-respondent, in its written statement, denied any liability as there was no negligence on the part of the driver of the truck in that accident. It also disputed the age and income of the deceased. It, therefore, submitted that the claim petition did not have any merit and is liable to be dismissed. 4. On the pleadings of the parties, the following issues were framed by the Tribunal for consideration: 1. Whether the deceased Laxman Saha, S/o Late Upendra Saha, aged about 35 years, died in a vehicular accident occurred on 4-3-2011 at about 1 PM at Barmura near Bankumari Mandir on Assam-Agartala Road under Jirania PS due to rash and negligent driving of the vehicle bearing No. TR-01-B-1749 (Truck) by its driver? 2. Whether the claimant petitioners are entitled to get any compensation due to the said death, if so, what would be the quantum of compensation and who shall be held liable for payment of the same? 3. What other relief/reliefs are the parties entitled to? 5. The appellant No. 1 examined herself and one other witness to prove her case and produced some documents, which were marked Exhibits 1 to 7 series. The respondent No. 1 did not examine herself as a witness but exhibited some documents such as photocopies of the Registration Certificate, Permit, Fitness Certificate, etc. whereas the respondent No. 2 neither examined any witness nor exhibited any documents to substantiate its case. On the conclusion of the trial, the Tribunal passed the impugned judgment, which is under challenge in this appeal. 6. Assailing the impugned judgment, Mr. P.S. Roy, the learned counsel for the appellants, submits that the Tribunal has misunderstood the concept of contributory negligence and has in the process perversely held that the deceased was equally negligent and responsible for the accident which resulted in his death; no shred of evidence was ever adduced by the respondents to prove any plea of contributory negligence. He also contends that the Tribunal was too economical in assessing the income of the deceased when his Income Tax return itself indicated that he was earning Rs.3,01,500/- per annum from the business carried on by him; it ought to have held that he was earning Rs.25,125/- per month. He also contends that the Tribunal was too economical in assessing the income of the deceased when his Income Tax return itself indicated that he was earning Rs.3,01,500/- per annum from the business carried on by him; it ought to have held that he was earning Rs.25,125/- per month. It is also the submission of the learned counsel for the appellants that the Tribunal erroneously awarded only Rs.10,000/- for funeral expenses, Rs.50,000/- for loss of consortium and Rs.50,000/- for loss of care and attention; it ought to have awarded Rs.50,000/- for funeral expenses, Rs.1,00,000/- for loss of consortium and Rs.2,00,000/- for loss of care and attention for the minor-appellants. The learned counsel also makes grievances that the Tribunal failed to make any award under the head of loss of love and affection, which should have been quantified at Rs.1,00,000/- or any award on his treatment and transportation cost or compensation for loss of estate and expectation of life, which should have been assessed as Rs.2,00,000/-. He, therefore, submits that the compensation awarded by the Tribunal be enhanced to Rs.56,15,000/- without making any deduction towards contributory negligence, which was never proved by the respondents. Mr. P. Gautam, the learned counsel for the insurer, supports the impugned judgment, which was passed by the Tribunal after carefully considering the evidence brought on record and the same needs no interference by this Court. 7. Though no plea was raised by the insurer on contributory negligence nor was any issue to that effect framed by the Tribunal, yet it proceeded to record the following findings: “Thus, from the certified copy of FIR, ejahar, charge sheet and post mortem examination report, it appears to me that at the time of accident, the deceased was proceeding towards Teliamura with his bike bearing No. TR-01-L-8327 and the Truck bearing No. TR-01-B-1749 (Truck) was proceeding towards Agartala from the opposite directions. Both the vehicles appeared to be in high speed as both the bike and the Truck collided face to face. So, I am of the opinion that both the bike rider (deceased) and the Driver of the offending Truck were in fault. I am satisfied that the incident of accident could have been avoided if any of the rider of the bike or the driver of the truck were more cautious. So, I am of the opinion that both the bike rider (deceased) and the Driver of the offending Truck were in fault. I am satisfied that the incident of accident could have been avoided if any of the rider of the bike or the driver of the truck were more cautious. So it is clear that the deceased Laxman Saha died on 4-3-2011 due to rash and negligent driving of TR-01-B-1749 (Truck) by its driver and also due to rash and negligent riding of his own bike.” 8. I have carefully gone through copies of the FIR, police report, charge sheet and post mortem examination report, which formed a part of the record, but nowhere in those documents was indicated that the deceased drove the motor bike rashly or negligently prior to the accident. No plea to that effect was ever raised by both the owner of the truck and the insurer. If the claimant or deceased is guilty of an act or omission, which has materially contributed to the accident and the resultant injury and damages, the matter comes within the concept of contributory negligence and courts are required to apportion the loss between the parties as the facts and circumstances may justify. The concept is lucidly explained by the Apex Court in Usha Rajkhowa v. Paramount Industries, (2009) 14 SCC 71 in this way: “20. The question of contributory negligence on the part of the driver in case of collision was considered by this Court in Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak. (2002) 6 SCC 455 That was also a case of collision between a car and a truck. It was observed in SCC p. 458, para 8: “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. 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. This Court further relied on an observation of the High Court of Australia in Astley v. Austrust Ltd. (1999) 73 ALJR 403 to the following effect: “A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiff’s share of responsibility for the damage suffered; and in yet other cases, the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property.” 22. Keeping these principles in mind, 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 the insurance company as it was its burden and for that, the panchnama of the spot, showing tyre marks caused by brakes, and the panchnama of the damaged car and the truck could have been brought on record. The insurance company has obviously failed to discharge its burden. We, therefore, respectfully follow the abovementioned judgment.” 9. The insurance company has obviously failed to discharge its burden. We, therefore, respectfully follow the abovementioned judgment.” 9. As in Usha Rajkhowa case (supra), there is nothing in the evidence remotely indicating that the deceased had breached his duty in any manner or was in any way responsible for the accident. Such breach on the part of the deceased or any negligence on his part shall have to be proved by the insurer as the burden of proof there for lies upon it. True, in a given case, where the required materials for coming to the conclusion regarding liability of the accident were not placed before the Tribunal by either side, it does not mean that the Tribunal is bereft of powers for getting at the truth of the claim as well as regarding the person at fault who drove the vehicle. In other words, the Tribunal can competently examine the applicability of contributory negligence in a given case on the basis of evidence before it even if this defence it not taken by the other side. However, no such evidence is forthcoming in this case. In this view of the matter, the Tribunal perversely held that there was contributory negligence on the part of the deceased resulting in the vehicular accident and wrongly restricting the claim of the appellants to 50% of the awarded amount of compensation. 10. This then takes to the issue regarding the income of the deceased. The income of the deceased was sought to be proved by his IT return for the financial year 2008-09 and the assessment years 2009-10. In this return so filed, his taxable income was assessed at Rs.1,51,700/-. However, his taxable income for the year 2010-11 is not available because by that time, he had already died. In this view of the matter, the assessment of the income of the deceased made by the Tribunal at Rs.1,51,500/- per annum does not call for the interference of this Court. In so far as the addition of 50% of his income for future prospect is concerned, it may be noted that the deceased was found to be below 40 years old at the time of the accident and was self-employed. In so far as the addition of 50% of his income for future prospect is concerned, it may be noted that the deceased was found to be below 40 years old at the time of the accident and was self-employed. The Constitution Bench of the Apex Court in National Insurance Company Ltd. v. Pranay Sethi and ors [Special Leave Petition (Civil) No. 25590 of 2014] has held that in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the rule where the deceased was below 40 years old. Therefore, future prospect contemplated by the Tribunal is contrary to the law laid down by the Apex Court. The addition of income of the deceased for future prospect should be restricted to 40% and not 50%. Thus, from the total yearly income of Rs.1,51,500/-, if one-third is deducted for his living expenses, it would come to Rs.1,01,000/-, which is the loss of dependency for the appellants, to which when 40%, which comes to Rs.40,400/-, is added as future income, it will come to Rs.1,01,000+Rs.40,400 = Rs.1,41,400/-. As he was below forty years of age at the time of the accident, multiplier of 15 shall have to be adopted and so adopted, the compensation payable would be Rs.1,41,400 X 15 = Rs.21,21,000/-. Keeping in mind the decision in Pranay Sethi case, the appellants would be entitled to Rs.40,000/- for loss of consortium, another sum of Rs.15,000/- for loss of estate and a further sum of Rs.15,000/- for funeral expenses. Thus, the total amount of compensation payable is Rs.21,91,000/-. The appellants will be entitled to interest at the rate of 9% per annum from the date of the claim petition. There shall be no restriction on the claim of the appellants to 50% of the compensation amount so arrived. 11. For what has been stated in the foregoing, this appeal is partly allowed. The insurer-respondent No. 2 is directed to deposit a sum of Rs.21,91,000/- with interest @ 9% per annum with effect from the date of the claim petition with this Registry within two months from the date of receipt of this judgment. Any amount already deposited or paid to the appellants shall be adjusted accordingly. The compensation shall be disbursed in the manner specified in the impugned judgment. Any amount already deposited or paid to the appellants shall be adjusted accordingly. The compensation shall be disbursed in the manner specified in the impugned judgment. The impugned judgment stands modified to the extent and in the manner indicated above. Transmit the LC record.