JUDGMENT & ORDER : S.G. Shah, J. Heard learned advocate Mr.Kritendra Tiwari appearing with Mr.T.R. Savani for the appellant in First Appeal No.878/2007 whereas learned advocate Mr.A.R. Parikh appearing with Mr.Mrugen K. Purohit, learned advocate for the appellant in First Appeal No.4224/206 whereas learned advocate Mr.P.M. Darji for the driver and owner of the offending vehicle in question whereas Mr.M.J. Shelat for the Insurance Company. 2. All these appeals are arising out of consolidated common judgment and award dated 11.7.2006 by Motor Accident Claims Tribunal, Rajkot in Motor Accident Claims Petition Nos.612 and 697 of 2002. Therefore, all these appeals are heard together and decided by this common judgment. 3. Motor Accident Claims Petition No.612/2002 was preferred by the parents of the victim of road accident namely; Jagdish @ Naranbhai Haribhai Makwana. The Tribunal has dismissed such claim petition. Therefore, they have preferred First Appeal No.4224/2006 challenging such award and dismissal of their claim for compensation because of death of their son. Whereas parents have also challenged the award in Motor Accident Claims Petition No.697/2002 in favour of the widow and minor children of the deceased victim claiming that being parents of the victim, they are entitled to appropriate share of compensation that was awarded in favour of the widow and minor only. Therefore, practically First Appeal Nos.4224 and 4225 of 2006 are by common litigants for common prayer to get compensation for the death of son by the parents whereas First Appeal No.878/2007 is by widow and minor for enhancement of compensation. Since Insurance Company has not challenged such award, it becomes clear that Insurance Company has admitted its liability to indemnify the owner of the vehicle which was involved in the accident and, therefore, minute details of incident and its result are not much material to reproduce here when it is well described in pleading and impugned judgment. 4. However, the basic fact may be recollected here. It is undisputed fact that on 26.3.2002 when victim was going on his Bajaj Scooter No.GJ-3EE-6911 towards Jasdan from Jorkhan, one Hero Honda Splendor Motor Cycle No.GJ-3-RR-1226 had came from opposite direction in rash and negligent manner and in full speed so as to endanger the life of passer-by on wrong side of the road and hit the scooter of the victim. For such incident, complaint was registered against the driver of motor cycle being respondent No.1 before Jasdan police station as CR No.32/2002. Therefore, on one hand, widow and minor children of the victim has preferred the claim petition claiming Rs. 15,00,000/- towards compensation whereas parents of the victim has preferred separate petition claiming Rs. 7,00,000/- towards compensation. 5. As aforesaid, when Insurance Company of motor cycle has not challenged the award, it becomes clear that there is no issue regarding nature of incident and its result and liability of present respondent being driver, owner and insurer of offending motor cycle and, therefore, these details are avoided to be reproduced. 6. The appeal is preferred on 3 issues namely; (1) who is negligent for the incident and to what extent? (2) whether Tribunal has awarded just and reasonable compensation or not? and (3) whether parents of the victim are entitled to any compensation or not? 7. So far as inter-se negligence between vehicles of both the drivers are concerned, it is undisputed fact that one of the driver is victim himself and, therefore, his heirs should not be entitled to compensation for the negligence of victim himself and, thereby, considering the contributory negligence by the victim, the award in favour of the claimant is to be reduced to that extent. Therefore, it is a crucial issue for the claimants when Tribunal has considered that victim was also negligent and fixed his liability to the tune of 30% and, thereby, deducted 30% amount from the total quantum of compensation in award. Therefore, when claimants have to letgo 30% amount of compensation, they are certainly right in challenging such issue also. 8. To ascertain the inter-se negligence between two drivers, one has to examine the relevant documentary as well as oral evidence available on record. The FIR is at Exh.67. Therefore, when claimants have to letgo 30% amount of compensation, they are certainly right in challenging such issue also. 8. To ascertain the inter-se negligence between two drivers, one has to examine the relevant documentary as well as oral evidence available on record. The FIR is at Exh.67. Unfortunately, improper or illegible copy of FIR and Panchnama are placed on record but it is clear and certain that complainant was also travelling on his motor cycle alongwith the deceased who was driving his scooter and thereby complainant has scene the accident when he has categorically stated in the complaint that the other motor cycle was coming from opposite direction i.e. from Jasdan side whereas they were going towards Jasdan and such motor cycle has dashed with the scooter of the victim whereby victim was fallen down from the scooter and that victim where as pillion rider with him namely Amrabhai and also the driver of the oncoming motor cycle was fallen down on road and they all were received injuries. Therefore, complainant has taken all these injured to Jasdan government dispensary in Auto Rickshaw. It is also disclosed that there was serious head injuries to the victim Jadgishbhai and, therefore, he died during treatment. 9. Whereas Panchnama of the place of incident is at Exh.68 which confirms that the scooter of the victim was lying on edge of the road and its front part was off the road towards North - West whereas back side is on the road and there were blood stains near the handle of the scooter at the distance of 2 feet whereas motor cycle was lying at the distance of 3 to 3.5 feet of the edge of the road and it was having blood stains on its road side. Both the vehicles have damaged on its front side. However, proper scrutiny of the Panchnama makes it clear that deceased victim was travelling from Panchvada towards Jasdan but when he reached near Atkot village, there was curve on the road and road which was North - South to South - West, turns to straight North - South but the impact was on road side edge of the road while reaching to the place on incident from village Atkot towards Panchvada. Therefore, when victim was coming from Panchvada side towards Atkot for going further to Jasdan, place of incident is absolutely on the edge of the left side of the road for the victim which is correct side of the road whereas while coming from Atkot it becomes right side (direction) of the road. Whereas, on coming motor cycle which has dashed with the victim was found on its wrong side. Therefore, it can be held that practically victim was not negligent at all and driver of the offending vehicle alone is sole and fully negligent. 10. However, when claimant could not adduce any evidence except this documentary evidence, the driver of the on coming motor cycle has stepped into witness box as OW-1. Though he admits the incident, now first time, he has come forward with a case that deceased was driving his scooter without light. However, there is no such pleading on record till he stepped into witness box as late as on 13.2.2006 when accident has taken place on 26.3.2002. Thereby, in absence of pleading when driver has first time deposed before the Court that scooter was driving without light in cross examination, he has no option but to admit that complaint was registered against him and he was charge-sheeted and after service of notice of such Motor Accident Claims Petition, he has not filed reply and that he is first time disclosing before this Court that scooter was having no lights at the relevant time. 11. Surprisingly, he denies to having knowledge about the direction of the road that it is from north to south but admits that in Panchnama vehicles were shown as per actual position after the incident. Therefore, when driver of the motor cycle admits that Panchnama is disclosing correct position of the incident and vehicles after incident, the place of incident speaks for itself whereby when it is certain and clear that the incident has taken place on correct side of the victim and vehicle of the opponent was found on its wrong side, there is reason to believe that opponent has come into wrong side and dashed the scooterist who was going on his correct side. Therefore, Tribunal has erred in considering contributory negligence of the victim solely relying upon the oral submissions of the learned advocate for the Insurance Company. 12. Therefore, Tribunal has erred in considering contributory negligence of the victim solely relying upon the oral submissions of the learned advocate for the Insurance Company. 12. Therefore, impugned award needs to be modified to that effect so as to hold that victim was not negligent at all and, thereby, claimants are entitled to full set of compensation from the driver, owner and insurer of the offending vehicle and, therefore, irrespective of any modification of quantum of compensation, now, it becomes clear that claimants are entitled to total amount of compensation of Rs. 9,23,000/- as calculated by the Tribunal in para 28 of the impugned judgment, however subject to modification after considering issue of quantum in following paragraph. 13. So far as quantum of compensation is concerned, the relevant factual details may be summarized as under: - Sr. No. Title Remarks 1 Nature of claim Fatal case 2 Victim Deceased Naranbhai Aged 35 years 3 Income of the victim Deceased was doing job work of centring on contract basis and earning Rs. 7,000/- to Rs. 8,000/-. 4 Claimant In Motor Accident Claims Petition No.612/2002 (FA No.4224/2006) and Motor Accident Claims Petition No.697/2002 (FA No.4225/2006 by parents and FA No.878/2007 by Widow and 3 minors) by widow and 3 minors. 5 Evidence Affidavit as examination in chief of mother of the deceased victim at Exh.38. However it seems that she has not offer herself for cross examination or she was not cross examined by the respondent. PW-2 at Exh.41 Madhurika Naranbhai Makwana has examined herself. She has produced documentary evidence at Exhs.42-57 to prove the income of the deceased whereas death certificate at Exh.58, complaint at Exh.59 and Panchnama at Exh.60. 6 Compensation awarded Rs. 8,96,000/- towards dependency considering Rs. 84,000/- as average prospective income taking Rs. 56,000/- as income on the date of incident and adding Rs. 1,12,000/- towards prospective income and applying 16 as suitable multiplier after deducting 1/3rd amount i.e. Rs. 28,000/- for personal expenses of the deceased. However, considering the negligence of the victim to the tune of 30%, the Tribunal has deducted amount of compensation by 30% and, thereby, awarded only Rs. 6,46,100/- with 7.5% interest. 14. If we peruse the impugned judgment, the Tribunal has considered the quantum of compensation in para Nos.26-28. 28,000/- for personal expenses of the deceased. However, considering the negligence of the victim to the tune of 30%, the Tribunal has deducted amount of compensation by 30% and, thereby, awarded only Rs. 6,46,100/- with 7.5% interest. 14. If we peruse the impugned judgment, the Tribunal has considered the quantum of compensation in para Nos.26-28. When Tribunal has considered relevant documentary evidence in the form of Income Tax Return and relied upon such Return for considering the average income of the deceased as Rs. 56,000/- per annum at the time of incident and taking Rs. 84,000/- per annum as prospective income, I do not see any reason or substance to reappreciate the documentary evidence regarding income of the deceased wherein the real income as per Income Tax Return is within the range of Rs. 46,000/- to Rs. 66,000/- for last 4 years before the accident. The Tribunal has deducted 1/3rd amount for personal expenses of the deceased and, therefore, arrived at oral dependency of Rs. 56,000/- and applied 16 as suitable multiplier to arrive at total loss of dependency to Rs. 8,96,000/-. 15. At the same time, when Tribunal has failed to allow the claim petition No.612/2002 by parents, the Tribunal should have considered the rival claims separately considering 3 major and 3 minor claimants, instead of deducting 1/3rd towards personal expenses, Tribunal should have deducted only 1/4th towards personal expenses so as to award just and reasonable compensation to the parents also because by all means, parents are also dependents and legal heirs when they are aged / senior citizens. 16. Similarly, Tribunal has awarded meager amount on other conventional heads, whereas considering decision in the case of National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 , the Tribunal ought to have awarded Rs. 70,000/- as aggregate amount on different conventional heads though in past in several cases, Hon'ble Supreme Court has awarded total Rs. 3,50,000/- on such conventional heads. Therefore, now claimants are entitled to Rs. 10,08,000/- towards loss of dependency considering Rs. 56,000/- per annum as actual earning at the time of accident and taking Rs. 84,000/- as average prospective earning capacity. From such amount, after deducting 1/4th being Rs. 21,000/- towards personal expenses, yearly dependency would be Rs. 63,000/- and applying 16 as suitable multiplier, it would come to Rs. 10,08,000/-. To such amount, we have to add Rs. 56,000/- per annum as actual earning at the time of accident and taking Rs. 84,000/- as average prospective earning capacity. From such amount, after deducting 1/4th being Rs. 21,000/- towards personal expenses, yearly dependency would be Rs. 63,000/- and applying 16 as suitable multiplier, it would come to Rs. 10,08,000/-. To such amount, we have to add Rs. 70,000/- towards conventional heads as confirmed by the full bench in the case of Pranay Sethi and Rs. 5,000/- towards medical expenses when medical bill worth Rs. 4,390/- is produced at Exh.45. This would come to Rs. 10,83,000/- in toto. 17. Then the only issue remains is regarding entitlement of parents to get compensation. Though widow has tried to prove on record and convince the Court that father of the deceased was partner in the earning activity of the deceased and, therefore, he is not dependent and that deceased was not helping the parents because there was dispute between wife and her in-laws the fact remains that the centring business of the deceased is labour work on construction side whereby by all probabilities partnership of a father is practically either for bifurcation of income for IT purpose or because of responsibility of a son to support his father. In that case, if we consider the partnership of the father, probably the income of the deceased needs to be reduced by 50% and, thereby, widow and minor may get only 50% of compensation under the head of loss of dependency. Therefore, when widow was claiming that deceased was earning Rs. 56,000/- per annum from such income, it is clear that deceased was supporting his aged parents also. 18. Otherwise also, parents being legal heirs of the deceased son though of Class-II, at-least mother is certainly dependent of the son irrespective of income of her husband and, therefore, it can never be said that parents are not entitled to any amount of compensation from the total amount awarded in favour of the claimants. 19. However, the appellant is relying upon the decision in the case of Govind Sao v. Surjit Singh Mahal @ Bhola Babu, (2000) ACJ 489, wherein learned Single Judge of Patna High Court has held that dismissal of claim petition of parents and awarding entire compensation to the widow is just and proper. With due respect, I do not agree with such proposition since it is not the correct law. With due respect, I do not agree with such proposition since it is not the correct law. On the contrary, it is settled legal position that mother and practically parents are entitled to appropriate amount of compensation, more particularly, when they are aged. In general, several decisions of Hon'ble Supreme Court of India confirms that parents are entitled to 1/3rd of the total amount of compensation. However, even if we consider that if at all father of the deceased was partner with the deceased, though there is no cogent and reliable evidence to prove it, when business would remain with the father, instead of awarding 1/3rd amount of total compensation, it would be just and proper to award at-least 1/4th amount of total compensation to the parents. The appellant is relying upon the decision in the case of D.Shanmukha Sundaramma v. D.Suneetha, (2009) 3 SCC 787 . 20. In view of above facts and circumstances and discussion, these appeals are partly allowed in following terms: * The impugned order is modified so as to confirm that victim was not negligent at all and, thereby, driver of the offending motor cycle is solely negligent and, therefore, there would be no deduction of any compensation from the total amount of compensation that may be just and proper. * As calculated and discussed hereinabove, claimants are entitled to total amount of compensation of Rs. 10,83,000/- jointly and severally from driver, owner and insurer of motor cycle No.GJ-3-RR-1226. * Out of total amount of award, the claimants of Motor Accident Claims Petition No.697/2002 being parents of the victim are entitled to get Rs. 2,70,750/- being 1/4th of total amount of compensation. 21. Therefore, impugned award is modified to the aforesaid extent. Thereby, now, when Tribunal has already awarded amount of Rs. 6,46,100/-, the Insurance Company has to deposit additional amount of Rs. 4,36,900/- with 9% interest from the date of application till its realization. Out of such total amount, as aforesaid, the parents being claimants in Motor Accident Claims Petition No.697/2002 are entitled to Rs. 2,70,750/- with proportionate interest whereas widow and minors are entitled to get remaining amount of Rs. 1,66,150/- with proportionate interest. 22. Insurance Company shall deposit the aforesaid amount with interest within 8 weeks, without fail. 23. R & P be sent back to the concerned Court at the earliest.