JUDGMENT : S.G. SHAH, J. 1. Heard learned advocate Mr.Tolia for the appellant, Mr.H.G. Mazmudar, learned advocate for respondent No.3 and learned advocate Mr.Pandya for respondent No.1. Though there is sick-note of learned advocate Mr.Parghi for respondent No.2 considering the fact that appeal is pending since the year 2008 i.e. for last more than 10 years and more particularly when there is no issue regarding liability of the insurance company and the only issue rest for consideration of this Court is regarding contribution in negligence between the deceased victim and respondent No.1 herein who is represented by learned advocate Mr.Pandya before this Court and by learned advocate Mr.P.K. Chaudhary before the Tribunal; so also quantum of compensation that may be awarded to the claimants as just and proper compensation, practically, presence of respondent No.2 is not material and, therefore, when all other advocates are ready with the matter, it is heard on merits and decided as such. Perused the record. 2. The appellants are original claimants before Motor Accident Claims Tribunal, Navsari in Motor Accident Claims Petition No.149/2003 wherein they have claimed Rs.5,00,000/- towards compensation because of death of Umed Jatarbhai Ganvit since claimants are parents, younger brother and widow of such victim of road accident. It is undisputed fact that on 13.5.2003 when victim was going towards Unai from Vyara on his motor cycle No.GJ-19-C-825, one jeep No.GJ-17-A-7770 has dashed the motor cycle whereby victim has received serious injuries and he succumbed to such injuries. Therefore, considering the age of the victim being 27 years at the relevant time and considering his monthly income as Rs.4,500/- on the date of accident, claimants have claimed Rs.5,00,000/- from driver, owner and insurer of the vehicle in question. 3. So far as negligence is concerned, it is undisputed fact that complaint at Exh.49 is registered by 3rd person only after knowing the incident and, therefore, it does not disclose any specific facts so as to ascertain the percentage of negligence of either of the vehicle. However, Panchnama at Exh.50 is quite clear which confirms that at the place of incident, the road is 20 feet and place of incident is on the left edge of the road considering the path / way of the victim going towards Unai. However, Panchnama at Exh.50 is quite clear which confirms that at the place of incident, the road is 20 feet and place of incident is on the left edge of the road considering the path / way of the victim going towards Unai. Therefore, if victim was going towards Unai and if accident has taken place on left side of the edge of the victim then it is clear and obvious that victim was almost on the left side of the road and, thereby, when road is 20 feet wide by all probabilities, jeep driver has came on wrong side and dashed the victim and, therefore, there is least chance to confirm contribution of the victim in accident and, thereby, to hold him contributory negligent for the incident. 4. Unfortunately, though driver of the jeep has filed written statement before the Tribunal at Exh.35, and though, he has categorically denied the incident at all, and though such pleadings are not to be taken into consideration when driver has not stepped into witness box, it cannot be ignored that on one hand, when driver has denied the incident, on the other hand, in para 9 of his reply, he has no option but to admit that he was plying his jeep on road where accident has taken place at the relevant time. Surprisingly, it is his pleading in his reply that motor cycle was coming from opposite direction and hit with the footrest of his jeep and, therefore, accident has taken place. Therefore, now, it is certain and clear that in fact driver of the jeep who was present before the Tribunal as well as before this Court has admitted the incident of accident and, therefore, only because his pleading differently than the panchnama, it cannot be held that victim was also equally negligent for the incident, as held by the Tribunal in impugned award. 5. 5. It cannot be ignored that even after such specific reply filed by the driver of the offending vehicle being jeep, the insurance company has at Exh.58 filed an application u/S.170 of the MV Act and while allowing such application it is considered by the Tribunal that insurance company has apprehension that there is collision between the applicants and the driver and owner of the vehicle involved in the accident and that driver and owner are not likely to contest the petition and they are not willing to file written objections whereas on the written statement of the driver was very much there on the record before such application which is filed on 28.12.2005 since reply was already filed on record on 27.8.2004. 6. In any case, the perusal of record makes it clear that driver of the jeep has not entered into the witness box probably because of the fact that he must have been charge-sheeted after the investigation by the investigating agency and, thereby, there would be prima facie evidence against his negligence. But in any case, in absence of any evidence by the opponent to prove the contribution of the victim in the incident, the Tribunal has certainly committed an error and, therefore, such conclusion and determination by the Tribunal needs to be modified, relying upon the judgment in the case of Kiran v. Sajjan Singh reported in 2015(1) SCC 539 . 7. In any case, when there is no evidence on record to consider the negligence of the victim in any manner whatsoever and more particularly when panchnama of the incident at Exh.50 categorically confirms that victim was not only on his correct side but was at the edge of the road which is the place of the incident where even blood stains were found during panchnama, the Tribunal has committed an error when it is observed that since accident has taken place near turning and considering the size of the vehicle and damaged shown to the motor vehicle, the deceased motor cycle was held negligent to the extent of 50%. 8. 8. Therefore, when there is no cogent and reliable evidence on record to prove that victim was also negligent for the incident, such finding of the Tribunal cannot sustain and, thereby, it is quashed and set aside holding that victim was not negligent at all and, thereby, driver of the jeep alone was negligent for the incident and, therefore, all the opponents are jointly and severally liable to pay full set of compensation that can be awarded to the claimants in such litigation. It cannot be ignored that for the driver, owner and insurer of the jeep, victim was 3rd party and, therefore, there is no issue regarding liability of insurance company to pay any compensation. 9. Then remains the issue regarding quantum of compensation that may be awarded to the claimants. The Tribunal has awarded Rs.4,87,660/- considering Rs.3,981/- as income of the deceased on the date of accident and deducting 1/3rd towards the personal expenses and, thereby considering Rs.2,587/- of the monthly dependency and applying 15 as suitable multiplier considering the age of the victim as 27 years. This amount comes to Rs.4,65,660/-. To such amount, Tribunal has awarded Rs.20,000/- towards loss of estate and consortium and Rs.2,000/- towards funeral expenses. 10. Therefore, two things are very much clear and certain on record that there is evidence in the form of deposition by one Hasmukhbhai N. Chaudhary at Exh.63 disclosing that deceased was getting Rs.3,981/- and produced relevant documentary evidence to prove such salary at Exhs.65 to 67. Such documentary evidence discloses that deceased was getting Rs.3,981/- per month from his employer. However, while awarding compensation, Tribunal has failed to consider his prospective income and also failed to award just and reasonable amount of compensation, so far as different conventional heads are concerned. 11. Therefore, if we consider the monthly earning of the victim on the date of incident as Rs.3,981/- and taking 50% as prospective income, his average earning capacity would be Rs.5,971/-, out of which, if Rs.1,971/- is deducted towards personal expenses, then, dependency of the victim would be Rs.4,000/- per month considering the age of the deceased between 25- 30 years, even multiplier of 17 would be required to be considered. Therefore, multiplying Rs.4,000/- X 12 X 17, it would come to Rs.8,16,000/-. One has to add Rs.70,000/- on different conventional heads as per the decision the case of National Insurance Co. Therefore, multiplying Rs.4,000/- X 12 X 17, it would come to Rs.8,16,000/-. One has to add Rs.70,000/- on different conventional heads as per the decision the case of National Insurance Co. Ltd. v. Pranay Sethi reported in 2017 (16) SCC 680 , which results into total amount of Rs.8,86,000/-. However, when Tribunal has awarded only Rs.2,43,830/- deducting 50% towards negligence of the victim and when now this Court has held that victim was not negligent at all and, thereby, when claimants are entitled total amount of Rs.8,86,000/-, the claimants are entitled to additional compensation of Rs.6,42,170/- with 9% interest from the date of application till its realization. 12. Therefore, appeal is partly allowed. The award is modified so as to confirm that deceased was not negligent for the incident and that claimants are entitled to total amount of Rs.8,86,000/-. Thereby, now, insurance company have to pay such amount by deducting amount which has already been paid by them as per conventional heads and as per interim award, if any. 13. However, though in appeal, claim is restricted to Rs.2,56,170/- only considering the decision of S. Suresh v. Oriental Insurance Co. Ltd. Reported in 2010 ACJ 487, it is made clear that irrespective of such claim of the claimants when Court has considered just and reasonable compensation available to the claimants, there is no reason to restrict the award to modify accordingly so as to confirm that claimants are entitled to all such amount as calculated hereinabove. However, for the purpose, when appellants – claimants have paid court fee stamp only for their claim of Rs.2,56,170/-, while drawing the decree, the court fee stamp is to be calculated and recovered for the entire awarded amount. 14. Present appeal is disposed of in above terms. R & P, if received from the concerned Court, be sent back to the concerned Court at the earliest. Appeal partly allowed.