JUDGMENT : 1. National India Insurance Company Ltd. original opponent no.3 has filed First Appeal No.2442/2008 under section 173 of the Motor Vehicles Act, 1988 ("the Act" for short) being aggrieved by the judgment and award dated 19.12.2007 passed by the Motor Accident Claims Tribunal (Auxi), Fast Track Court No.3, Gondal ("the Tribunal” for short) in MACP No. 1612/1999 whereby a sum of Rs. 3,19,000/- with interest at the rate of 9.05% per annum from the date of claim petition till realisation is awarded to the original claimants as compensation and the insurance company is held jointly and severally liable for payment of said sum along with the owner of the vehicle involved in the accident. 2. The original claimants have filed Cross Objection No.252/2009 for enhancement of the compensation in the aforesaid First Appeal filed by the insurance company under the provisions of Order 41 Rule 22 of the Code of Civil Procedure, 1973 whereby total claim of Rs. 8,00,000/- is made. 3. Brief facts of the case are as under: 3.1 On 6.10.1999, deceased Punjabhai Khodabhai was travelling from Upleta to his village Mekhatimbi on National Highway on his scooter. At that point of time near Vishal Khandsari, near Upleta, one rickshaw bearing registration no. G.R.P.5664 came in an excessive speed being driven rashly and negligently by its driver and dashed with the scooter. Deceased Punjabhai suffered serious injuries on his head and was shifted to the hospital at Upleta. Thereafter, he was shifted to the hospital of neurosurgeon Dr. Prakash Modha and after treatment of more than one and half month on 15.11.1999, Punjabhai succumbed to the injuries. Late Punjabhai was the only earning member of the family. He was doing the agricultural work in his 50 vigha land together with the profession of supply of agricultural labourers. The claimants therefore, claimed compensation of Rs. 8,00,000/- on various counts against the owner and the insurance company. 3.2 The appellant-insurance company on service of summons filed written statement at Exh.19 contending inter-alia that the claim petition is not legal as initially no information is given to the police about the accident of the scooter with the rickshaw. It was further stated that as per the FIR filed with the police, no registration number of rickshaw was given but it was stated that on inquiry, number of the rickshaw was known subsequently. It was further stated that as per the FIR filed with the police, no registration number of rickshaw was given but it was stated that on inquiry, number of the rickshaw was known subsequently. It was contended that as per the inquest panchnama at the time of death of late Punjabhai in the hospital of Dr. Modha, entry No.703/99 was made in Malavianagar police station, wherein it is stated that the late Punjabhai died due to injuries on account of his Hero-Honda motorcycle having slipped and therefore, got up facts are stated in the claim petition that the accident had occurred with the rickshaw in order to get compensation. It was further stated in the written statement that even for the sake of argument, if it is assumed that the accident took place due to the negligence of the driver of the rickshaw, then 50% contributory negligence is required to be attributed to the driver of the motorcycle. 3.3 The Tribunal framed issues at Exh.22 to the effect that whether the claimants prove that the accident dated 6.10.1999 occurred due to the rash and negligent driving of the rickshaw and whether late Punjabhai received injuries as a result of rash and negligent driving on part of the offending vehicle and what amount of just compensation is required to be awarded. The Tribunal after taking into consideration the oral and documentary evidence on record, more particularly, the examination-in-chief of Ratanben Punjabhai at Exh.28, panchnama at Exh.29, medical certificate issued by Junagadh hospital at Exh.30, medical certificate issued by Gokul hospital and Trauma centre at Exh.31, inquest panchnama at Exh.32, post mortem report at Exh.33 and oral evidence of Bhanjibhai Lakhabhai at Exh.39 before the Magistrate Court as well as the statement of said Bhanjibhai Lakhabhai before the police at Exh.40, copy of FIR at Exh.43, copy of charge-sheet at Exh.44, deposition of Sukhdevsinh Manubhai Gohil at Exh.46 before the JMFC court, statement of Ramabhai Jethabhai before the police at Exh.47 etc., came to the conclusion on the basis of aforesaid documentary and oral evidence that the accident occurred due to rash and negligent driving by the driver of the rickshaw. The Tribunal has also considered that the owner of rickshaw Ramabhai Jethabhai in his statement before the police at Exh.47 has clearly stated that the rickshaw involved in the accident is of his ownership and he has admitted that there was an accident. The Tribunal placing reliance upon the judgment in case of Pankajbhai Chandulal Patel v. Indian Transport company reported in 1997 (1) GLR 403 , and evidence led before the Magistrate court, held that as per the settled position, such evidence can be considered while deciding the MACP irrespective of the fact that the accused person is acquitted or convicted by the criminal court, as the strict proof of evidence as required for conviction under the criminal law is not applicable to the Tribunal while deciding the amount of compensation payable to the claimants. The Tribunal has therefore, concluded that owner of rickshaw bearing registration no. G.R.P.5664 is solely responsible for the death of late Punjabhai due to rash and negligent driving of its driver. The Tribunal therefore, held that on the basis of the evidence on record, the insurance company has failed to prove that rickshaw which has caused the accident resulting into death of late Punjabhai is not involved in the accident. 3.4 With regard to the compensation payable to the claimants, the Tribunal has considered the deposition of wife of late Punjabhai, i.e. Ratanben Punjabhai to the effect that late Punjabhai was running a Government approved ration shop, he was earning from supply of agriculture labourers and he was also doing agricultural activity on 50 vigha land and was earning Rs. 50,000/- per year. However, there is no evidence produced on record to justify the annual income of Rs.50,000/-. The Tribunal relying on various case laws in respect of adopting notional income, considered the notional income of Rs. 1500/- per month thereafter doubled it to Rs.3000/- and took the average of Rs. 4500/- and divided it by one half and adopted Rs. 2250/as progressive and effective monthly income of deceased Punjabhai. The Tribunal taking into consideration the age of the deceased at the time of the accident between 45 and 50 years, adopted multiplier of 12 and, therefore, arrived at amount of Rs.3,24,000/- (Rs.2250x12x12). The Tribunal deducted 1/3rd amount i.e. Rs.1,08,000/- towards personal expenditure from Rs.3,24,000/- and awarded compensation of Rs. 2,16,000/- under the head of future loss of income to the claimant. The Tribunal deducted 1/3rd amount i.e. Rs.1,08,000/- towards personal expenditure from Rs.3,24,000/- and awarded compensation of Rs. 2,16,000/- under the head of future loss of income to the claimant. The Tribunal has awarded Rs. 20,000/- for loss of consortium, Rs.20,000/- under the head of pain, shock and suffering and Rs.60,000/- towards the medical expenditure. The Tribunal also awarded Rs. 3000/- for attendant charges. Thus the Tribunal awarded Rs. 3,19,000/- as under: Heads of compensation Amount Rs. Future loss of income 2,16,000/- Loss of consortium 20,000/- Pain shock and suffering 20,000/- Medical expenditure 60,000/- Attendant charges 3,000/- Total compensation Rs.3,19,000/- 4. The Tribunal considering the cover note of insurance produced at Exh.53 which was in force at the time of accident on 6.10.1999 held the insurance company jointly and severally liable along with the owner of rickshaw bearing registration No. G.R.P.5664. The Tribunal also awarded interest at the rate of 9.05% per annum from the date of application till realisation. 5. Heard Mr. H.G. Mazmudar for the appellant-insurance company and Mr. Tushar Sheth for the claimants. 6. Learned advocate for the insurance company submitted that the rickshaw bearing registration No G.R.P.5664 is not at all involved in the accident in view of oral evidence of Bhanjibhai Lakhabhai at Exh.39, wherein he has deposed that the driver of rickshaw has dashed with the scooter of late Punjabhai based up on his statement before the police on 13.11.1999 which was after one month from the date of accident. It was therefore submitted that the Tribunal ought to have discarded his deposition. Learned advocate further stated that as the FIR was lodged after more than one month on 6.11.1999, it creates doubt about the involvement of rickshaw in the accident. He further submitted that the entire case put up by the claimants stating that the accident had occurred with rickshaw bearing registration no G.R.P.5664 due to which late Punjabhai has died after prolonged treatment of one and half month is not believable, as at the time of the accident there is nothing on record to suggest that the accident took place due to involvement of the aforesaid rickshaw. Moreover, it was submitted that the driver of the rickshaw is not joined as party by the claimants in the claim petition. Moreover, it was submitted that the driver of the rickshaw is not joined as party by the claimants in the claim petition. He further submitted that the Tribunal has failed to consider that before his death, deceased Punjabhai was at hospital for some time and none of his family members had disclosed to the doctor that late Punjabhai had been hit from behind by the rickshaw. It is further submitted that even the doctor had been given to understand that the deceased had slipped while riding his motorcycle and sole eyewitness to the incident Bhanjibhai Lakhabhai also told the doctor that deceased Punjabhai had slipped while riding his motorcycle. Learned advocate relied upon the panchnama of the place of the accident drawn on 6.10.1999 wherein also it is revealed that late Punjabhai had slipped while riding his motorcycle. Learned advocate further submitted that the Tribunal failed to consider that panchnama did not reveal any damage to the rear part of the motorcycle involved in the accident inasmuch as inquest panchnama at Exh.32 drawn on 15.11.1992 also states that late Punjabhai had slipped while riding the motorcycle. Learned advocate referred to the deposition of Ratanben, wife of deceased Punjabhai at Exh.28 to contend that she has stated in her statement that her husband died after his motorcycle slipped while he was riding the same and not by getting hit from behind by the rickshaw. Learned advocate further referred to entry made by the police in the station diary which also revealed about the fact that late Punjabhai had slipped while riding his motorcycle. Learned advocate further stated that the statement of Ramabhai Jethabhai at Exh.47 before Magistrate, cannot be taken into consideration as he has not chosen to appear before the Tribunal. 6.1 He further submitted that the Tribunal failed to appreciate that it was the duty of the claimant to prove beyond doubt that late Punjabhai had died after being hit from behind by rickshaw bearing registration no. G.R.P.5664 which was insured with the insurance company. 7. 6.1 He further submitted that the Tribunal failed to appreciate that it was the duty of the claimant to prove beyond doubt that late Punjabhai had died after being hit from behind by rickshaw bearing registration no. G.R.P.5664 which was insured with the insurance company. 7. On the other hand, learned advocate for the claimants supported the findings of the Tribunal that the insurance company is jointly and severally liable to pay the compensation to the claimants inasmuch as he referred to evidence on record namely, evidence of Bhanjibhai Lakhabhai at Exh.39, his statement before the police Exh.40 and his deposition before JMFC court in criminal case No.903/1999 at Exh.41. It was submitted in the cross examination he has denied that the accident has occurred as the scooter slipped. He also stated in the cross examination that he is not giving false deposition as late Punjabhai was his near relative. The statement of Bhanjibhai Lakhabhai dated 13.11.1999 given before the police is consistent with the deposition before the Tribunal, his deposition before the Magistrate court at Exh.41, as well as with his deposition at Exh.39. It was also contended that even the owner of rickshaw, Ramabhai Jethabhai has stated before the police at Exh.47 that his rickshaw was involved in the accident. He submitted that the Tribunal has rightly held on the basis of evidence on record that the rickshaw was involved in the accident and therefore, the insurance company is jointly and severally liable for the accident, In support of his contention, he placed reliance on decision of this Court in case of National Insurance Co Ltd. v. Rakshaben Laxmansinh Thakor and others reported in 2010(1) GCD 305 (First Appeal No.1402, 1403 of 2009) wherein this court in similar facts held insurance company liable to pay compensation. 7.1 He further relied upon the decision of Supreme Court in case of Mangla Ram v. Oriental Insurance Company Limited and others reported in (2018) 5 Supreme Court Cases 656, wherein it is held that while dealing with the claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, the Tribunal stricto sensu is not bound by the pleadings of the parties, its function is to determine the amount of fair compensation. The Court restated the legal position that the claimants were merely to establish their case on the touchstone of preponderance of probability and standard of proof beyond reasonable doubt cannot be applied by the Tribunal while dealing with the motor accident cases. In other words, the approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability. 7.2 With regard to burden of proof on the claimant, learned advocate relied upon the decision of Madras High Court in case of the New India Assurance Co. Ltd v. Kuttiapeyyan @ Ammasi reported in 2017 SCC OnLine Mad 24752, wherein it has been held as under : “4. On careful consideration of the oral and documentary evidence adduced on both sides, it is clear that the insurer has failed to discharge the burden cast on them. Fundamentally, in this beneficial jurisdiction, it is settled law that it would suffice for the claimant to provide prima facie proof, in summary procedure, before the claims Tribunal, about the involvement of the vehicle and negligence of the driver. That burden has been discharged with evidence of P.W.1 read with Ext.P-l, FIR followed by Ext.P-3 MVI Report and a charge sheet in Ext.P-4 against the first respondent, owner cum driver of the Milk Van TN 30 Y 6682. 5. The burden has therefore shifted to the insurer to rebut the presumption raised by the claimant. Mere denial of involvement by first respondent/driver of the Milk van would not suffice. He is an interested witness for all practical purposes and in the face of independent investigation by police, resulting in Ext.P-4 Charge Sheet, the insurer had a duty to challenge the inference from such a charge sheet. It is for this purpose the insurer has been provided with the remedy of lodging a complaint with Crime Branch with the jurisdictional Crime Branch in Tamil Nadu vide orders in W.P. No. 7389/2005 (National Insurance Co. Ltd. v. Director, CBI). The insurer had the right and option to lodge a complaint seeking reinvestigation. Ext.R1 and Ext.R3 do not constitute such a complaint. Ext.R2, the trip sheet is a self serving document and does not have independent examination. 6. It is no doubt true that the Tribunal in paragraph Nos. Ltd. v. Director, CBI). The insurer had the right and option to lodge a complaint seeking reinvestigation. Ext.R1 and Ext.R3 do not constitute such a complaint. Ext.R2, the trip sheet is a self serving document and does not have independent examination. 6. It is no doubt true that the Tribunal in paragraph Nos. 7 on page 5 of its judgment has not considered the evidence of R.Ws.1 & 2 and Exts.R1 to R3. But that does not detract from the finding of the Milk Van TN 30 Y 6682 was involved in the accident on 31.03.2005 and was negligent also. The insurer has not discharged the burden cast on them since the burden is heavy in this jurisdiction meant to protect the interest of accident victims. The least the insurer could have done is to seek reinvestigation and question Ext.P.4 charge sheet against the first respondent/driver of the Milk Van. In the absence of any such challenge, the logical inference would be that upon independent investigation the police have concluded that the Milk Van TN 30 Y 6682 was involved in the accident. Such a conclusion cannot be set aside on the basis of evidence adduced by the insurer. Most importantly, it is a matter of record that the Milk Van TN 30 Y 6682 also travels on the same road and it is not as if it had nothing to do with the said route. In such circumstances, one cannot rule out the possibility of the first respondent/driver disowning responsibility to avoid implications from involvement of the Milk Van. Mere doubt or suspicion raised by the insurer is not sufficient to support their defence. The evidence on their side is not credible and not sufficient to dismiss the claim. It is also pertinent to note that the first respondent chose to remain ex parte and did not file any counter but instead sought to appear as R.W.1. The said conduct does not help the cause of the appellant/insurer. For these reasons, this Court is inclined to uphold the dam against the insurer.” 7.3 Learned advocate therefore, submitted that in view of the aforesaid decisions and taking into consideration oral and documentary evidence on record, the Tribunal has rightly concluded that the accident took place due to rash and negligent driving of rickshaw resulting into death of Punjabhai. For these reasons, this Court is inclined to uphold the dam against the insurer.” 7.3 Learned advocate therefore, submitted that in view of the aforesaid decisions and taking into consideration oral and documentary evidence on record, the Tribunal has rightly concluded that the accident took place due to rash and negligent driving of rickshaw resulting into death of Punjabhai. 7.4 With regard to the Cross Objections filed by the claimant for enhancement of the compensation, the learned advocate for the claimants submitted that the Tribunal ought to have taken notional income of Rs. 4000/- and which is further required to be enhanced by 25% as per the decision in case of National Insurance Company Limited v. Pranay Shethi and others reported in (2017) 16 Supreme Court Cases 680. He submitted that therefore, deducting 1/3rd from Rs.5000/-, notional income of Rs.3334/- ought to have been taken by the Tribunal and multiplier of 13 was required to be taken, as per decision of Supreme Court in case of Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another reported in (2009) 6 Supreme Court Cases 121. He therefore, submitted that amount of Rs.5,20,104/- ought to have been awarded towards future loss of income. He submitted that the Tribunal ought to have awarded Rs.70,000/- towards conventional heads instead of Rs.20,000/- and Rs.50,000/- for pain, shock and suffering instead of Rs. 20,000/-. He further submitted that amount of Rs.10,000/- ought to have been awarded on account of special diet, transportation and attendant charges instead of Rs.3000/- awarded by the Tribunal as the deceased had to undergo medical treatment for about one and half month. 8. On the other hand, learned counsel for the insurance company submitted that the Tribunal has awarded just compensation and no interference is required taking into consideration oral and documentary evidence on record, particularly, in absence of any evidence to prove the income of late Punjabhai. He therefore, submitted that the Tribunal has liberally computed the just compensation. 9. On careful consideration of the oral and documentary evidence adduced on record as well as the submissions made by both the sides, it emerges that the Tribunal has considered the fact that the insurance company has failed to prove or bring any evidence on record with regard to the defense that rickshaw is not involved in the accident. 9. On careful consideration of the oral and documentary evidence adduced on record as well as the submissions made by both the sides, it emerges that the Tribunal has considered the fact that the insurance company has failed to prove or bring any evidence on record with regard to the defense that rickshaw is not involved in the accident. The Tribunal has analysed the deposition of Bhanjibhai Lakhabhai Exh.39, wherein he has categorically stated that the accident has occurred due to rickshaw and further he has also relied upon his statement before the police at Exh.40 and his deposition in Criminal Case No.903/1999 which is consistent in involving the rickshaw for the accident. The Tribunal has considered the charge-sheet at Exh.44 wherein it is stated that the owner of rickshaw no. G.R.P.5664 is the accused person. Moreover, Ramabhai Jethabhai owner of the rickshaw has also admitted before the police in his statement at Exh.47 that his rickshaw was involved in the accident. The Tribunal has also considered the deposition of Ratanben, wife of late Punjabhai at Exh.22 before the Magistrate court wherein it is denied that her husband has died as the motorcycle slipped. The Tribunal therefore, rightly brushed aside the theory of the insurance company that as late Punjabhai was required to undergo treatment for one and half month, rickshaw is falsely involved in the accident. The Apex Court in case of Mangla Ram v. Oriental Insurance Company Limited and others (supra), has held that while dealing with the claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, the Tribunal stricto sensu is not bound by the pleadings of the parties, its function is to determine the amount of fair compensation. The Apex Court restated the legal position that the claimants were merely to establish their case on the touchstone of preponderance of probability and standard of proof beyond reasonable doubt cannot be applied by the Tribunal while dealing with the motor accident cases. In opinion of this court, the Tribunal on holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability has rightly come to the conclusion that the insurance company is jointly and severally liable for the accident caused by rickshaw bearing registration no. G.R.P.5664 for the compensation payable to the claimants. 10. In opinion of this court, the Tribunal on holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability has rightly come to the conclusion that the insurance company is jointly and severally liable for the accident caused by rickshaw bearing registration no. G.R.P.5664 for the compensation payable to the claimants. 10. With regard to Cross Objections filed by the claimants for enhancement of compensation, as per the decision of Apex Court in case of Pranay Shethi and others (supra), notional income of Rs.3000/- ought to have been taken by the Tribunal. As the deceased was in the age group of 45 to 50, 25% additional amount is required to be added thereto. Therefore, monthly income is worked out Rs.3750/- (Rs.3000 + Rs.750 (25% of Rs.3000)and as per the decision of Apex Court in case of Sarla Verma (supra), multiplier of 13 is required to be adopted and therefore, sum of Rs.5,85,000/- (Rs.3750 x 12 x 13) is worked out towards the future loss of income. As per the decision in case of Pranay Shethi and others (supra), Rs.70,000/- is required to be awarded under the conventional heads. For pain, shock and suffering, the amount awarded by the Tribunal is required to be enhanced to Rs.50,000/- and Rs.10,000/- is required to be awarded towards special diet, transportation and attendant charges, taking into consideration the prolonged treatment undergone due to accident by late Punjabhai. The Tribunal has rightly awarded Rs. 60,000/- towards medical expenses taking into consideration the evidence with regard to medical bills produced on record. Therefore, just compensation required to be awarded to the claimants is as under : Heads of compensation Amount Rs. Future loss of income 5,85,000/- Conventional heads 70,000/- Pain shock and suffering 50,000/- Medical expenditure 60,000/- Special diet, transportation and Attendant charges 10,000/- Total compensation Rs.7,75,000/- 11. For the forgoing reasons, the appeal of the insurance company being First Appeal No.2442/2008 is devoid of any merits and therefore, the same is rejected whereas Cross Objection No.252/2009 is partly allowed by enhancing the compensation by Rs.4,56,000/- (Rs.7,75,000 - 3,19,000). Enhanced compensation amount of Rs. For the forgoing reasons, the appeal of the insurance company being First Appeal No.2442/2008 is devoid of any merits and therefore, the same is rejected whereas Cross Objection No.252/2009 is partly allowed by enhancing the compensation by Rs.4,56,000/- (Rs.7,75,000 - 3,19,000). Enhanced compensation amount of Rs. 4,56,000/- shall be deposited by the insurance company with 9% interest per annum from the date of application till realisation with proportionate cost before the Tribunal within eight weeks from the date of receipt of copy of this judgment and Tribunal shall disburse the same as per the impugned judgment and award, as the rest of the judgment and award remains unaltered. The judgment and award of Tribunal is modified accordingly with no order as to costs. R&P may be sent back to the concerned Tribunal.