JUDGMENT : Rajnish Kumar, J. 1. Heard, Sri Vishal Tahlani, learned counsel for the appellants and Sri Waquar Hashim, learned counsel for respondent no.2/The National Insurance Company Ltd. None appeared for the other respondents. 2. This appeal has been filed for enhancement of the compensation awarded by the judgment and award dated 26.02.2010 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.2, Lucknow in Claim Petition No.59 of 2001(Smt. Asha Jaiswal and others versus Param Jeet Singh and another). 3. The facts, in brief, for adjudication of the present appeal are that on 18.05.2000 at about 8:00 a.m. the claimants/appellants were going alongwith the deceased Lakshmi Prakash Jaiswal from Lucknow towards Kanpur on Lucknow-Kanpur road. The deceased was driving the Maruti Car No.U.P.32 C-9850. When the car reached near Village-Barua, Police Station-Azgain, a truck No.U.P.78 T/1887, which was coming from the side of Kanpur and was being driven rashly and negligently by its driver came on the right side and hit the Maruti Car with force. Smt. Asha Jaiswal, Nishit Jaiswal and the deceased Lakshmi Prakash Jaiswal got serious injuries on account of accident. The deceased died after treatment of about 20 hours in K.G.M.C Lucknow. The deceased was aged about 40 years and was working in Jaiswal Frozen Food Carrier, Galla Mandi-Sandila, District Hardoi and earning Rs.5000/-per month. With the aforesaid allegations, the claim petition was filed claiming compensation of Rs.15,00,000/-. 4. The claim petition was contested by the respondent no.1 who is registered owner of the Truck No.U.P.78T-1887 stating that Narendra Kumar, driver of the truck, was having a valid driving license which was valid upto 2001 and the vehicle was having valid registration, permit and license. His further submission was that on 18.05.2001, the vehicle was being driven carefully by its driver and on account of the rash and negligent driving of the driver of the Maruti Car, the accident had occurred. The respondent no.2-National Insurance Company had also contested the case and filed written statement denying most of the averments for want of information and stated that the claimants/appellants would have to prove the allegations with cogent evidence. 5. On the basis of pleadings of the parties, 5 issues were framed. P.W.1-Darvesh Jaiswal, P.W.2-Asha Jaiswal and P.W.3-Nishant Jaiswal were got examined on behalf of the claimants/appellants while on behalf of the respondents no oral evidence was adduced. 5. On the basis of pleadings of the parties, 5 issues were framed. P.W.1-Darvesh Jaiswal, P.W.2-Asha Jaiswal and P.W.3-Nishant Jaiswal were got examined on behalf of the claimants/appellants while on behalf of the respondents no oral evidence was adduced. The claimants/appellants had filed copy of the First Information Report, Post Mortem Report, Chargesheet, Pay certificate, Insurance certificate and copy of the Driving license. On behalf of the Insurance Company verification report of the Driving license of the driver Narendra Kumar on Form 54, copy of the report of Investigator and site plan were filed. 6. After considering the pleadings and evidence, the issue nos. 1 and 4 regarding accident and contributory negligence of the driver have been decided together holding that the driver of the Truck No.U.P.78 T-1887 had hit the Maruti car on 18.05.2000 at about 8:00 a.m. in the morning at the place in question, which was coming from the side of Kanpur in which the claimants/appellants and the deceased Lakshmi Prakash Jaiswal suffered serious injuries and he died. The contributory negligence of the deceased has been determined to the extent of 20% and that of the truck driver to the extent of 80% on the ground that truck driver was not got examined and as per the site plan both the vehicles have came to their right side and hit the other vehicle. Thereafter considering the age and income of the deceased an amount of Rs. 2,96,100/-has been awarded as compensation. Hence the present appeal has been filed for enhancement. 7. Submission of learned counsel for the appellants was that the deduction of 20% on account of contributory negligence by the claims tribunal is misconceived and not sustainable because it was specifically stated in the evidence of the eye witnesses that the accident had occurred due to rash and negligent driving of the driver of the truck and there was no contributory negligence of the deceased. The driver of the truck was not produced in evidence nor the site plan was proved even then the contributory negligence has been held in view of the judgment of the Hon'ble Apex Court without considering the facts and circumstances of the present case. Therefore the said finding is liable to be set aside. The driver of the truck was not produced in evidence nor the site plan was proved even then the contributory negligence has been held in view of the judgment of the Hon'ble Apex Court without considering the facts and circumstances of the present case. Therefore the said finding is liable to be set aside. He had further submitted that the salary certificate of Rs.5000/-was produced by the claimants/appellants but the learned Tribunal without considering the same assessed the income of the deceased as Rs.3000/-per month in view of the judgment of the Hon'ble Apex Court and has failed to consider that the deceased was working as Manager in a private firm and was also maintaining the Maruti car. He had further submitted that no future prospects have been allowed for which the claimant appellants are entitled in view of the judgment of the Hon'ble Apex Court in the case of National Insurance Company Limited versus Pranay Sethi & Others; (2017) 16 SCC 680 . The interest has also been awarded at the rate of 6% in place of 7% which is provided under the law. On the basis of above, learned counsel for the appellants had submitted that the judgment and award passed by the learned Tribunal is liable to be modified and the amount of compensation is liable to be enhanced. 8. Per contra, learned counsel for the respondent no.2/Insurance Company had submitted that there was head-on-collision between both the vehicles and the learned Tribunal has rightly held the contributory negligence considering the site plan. He had further submitted that the salary certificate filed by the claimants/appellants was not proved therefore the income has rightly been assessed as Rs.3000/-per month. Lastly, he had submitted that no ground has been taken for future prospects, therefore, the same cannot be allowed. Accordingly he submitted that the appeal is liable to be dismissed with cost. 9. I have considered the submission of learned counsel for the parties and perused the records. 10. The deceased Lakshmi Prakash Jaiswal had died on account of an accident which occurred between the Maruti car with Truck No. U.P.78 T1887 which was coming from the opposite side on 18.05.2000 at about 8:00 a.m. The fact of accident has not been disputed by learned counsel for the opposite parties. The only dispute is regarding the contributory negligence determined by the learned Tribunal. The only dispute is regarding the contributory negligence determined by the learned Tribunal. Learned Tribunal has come to the conclusion on the basis of the site plan and the alleged head-on-collision between the vehicles, while evidence has been adduced by the claimants/appellants that the accident had occurred due to rash and negligent driving of the driver of the truck No.U.P.78-T-1887 which was coming from the opposite side. The site plan, which is contained in Paper No.C/54/3 indicates the route of the car from Lucknow to Kanpur and route of the Truck No. U.P.78-T-1887 coming from Kanpur to Lucknow. The site plan prepared after the accident has not been proved by producing the concerned police personnel who had prepared the site plan and the driver of the vehicle was also not produced in evidence. Therefore the finding of contributory negligence on the basis of site plan could not have been recorded and the judgment of the Hon'ble Apex Court in the case of Bijoy Kumar Dugar versus Bidya Dhar Dutta and others; (2006) 2 SCC (Cri) 81 is of no assistance to the case of the respondents because in the said case, it was apparent from the evidence of P.W.2, who was sitting in the Maruti car alongwith the deceased was that before the accident the deceased, who was driving the car, had noticed the movement of the passenger bus, coming from the opposite direction, was not normal as it was coming in a jigjag manner. Therefore the Hon'ble Apex Court was of the view that if it was seen by the deceased before the accident that a bus was coming in an abnormal way from the opposite direction and thereafter it was a head-on-collision, then he is liable for contributory negligence because he could have taken more caution to save the accident. In the present case there is no evidence that the deceased who was driving the vehicle had seen the truck coming in a jigjag manner from the opposite side. Therefore unless there is evidence to prove that the accident had taken place due to rash and negligent driving of the deceased, the plea of contributory negligence could not have been recorded merely on the basis of site plan. 11. Therefore unless there is evidence to prove that the accident had taken place due to rash and negligent driving of the deceased, the plea of contributory negligence could not have been recorded merely on the basis of site plan. 11. The site plan could not have been relied for recording a finding of contributory negligence in absence of the examination of the police official who had prepared the site plan more so in absence of ocular evidence to prove and explain the contents of the site plan as held by the Hon'ble Apex Court in the case of Sunita and others versus Rajasthan State Road Transport Corporation & Others, 2019 SCC Online SC 195 (Manu/SC/0204/2019) has held that the theory of contributory negligence, on the basis of site plan, cannot be recorded without proving of the site plan by the person who has prepared the same. Therefore the finding recorded by the learned Tribunal in regard to the contributory negligence is not sustainable. The relevant paragraph 36 is extracted below:- "36. The site plan (Exh. 3) has been produced in evidence before the Tribunal by witness A.D. 1 (appellant No.1 herein) and the record seems to indicate that the accident occurred in the middle of the road. However, the exact location of the accident, as marked out in the site plan, has not been explained muchless proved through a competent witness by the respondents to substantiate their defence. Besides, the concerned police official who prepared the site plan has also not been examined. While the existence of the site plan may not be in doubt, it is difficult to accept the theory propounded on the basis of the site plan to record a finding against the appellants regarding negligence attributable to deceased Sitaram, moreso in absence of ocular evidence to prove and explain the contents of the site plan." 12. The three judges bench of the Hon'ble Apex court, in the case of Meera Devi and another versus Himanchal Raod Transport Corporation and others: 2014 ACJ 1012 , has held that to prove contributory negligence, there must be cogent evidence. The relevant portion in paragraph 10 is reproduced as under:- "To prove the contributory negligence, there must be cogent evidence. In the instant case, there is no specific evidence to prove that the accident has taken place due to rash and negligent driving of the deceased scooterist. The relevant portion in paragraph 10 is reproduced as under:- "To prove the contributory negligence, there must be cogent evidence. In the instant case, there is no specific evidence to prove that the accident has taken place due to rash and negligent driving of the deceased scooterist. In the absence of any cogent evidence to prove the plea of contributory negligence, the said doctrine of common law cannot be applied in the present case. We are, thus, of the view that the reasoning given by the High Court has no basis and the compensation awarded by the Tribunal was just and reasonable in the facts and circumstances of the case." 13. Now coming to the question of salary, the claimants/appellants had filed a salary certificate of the deceased Lakshmi Prakash Jaiswal issued by Ambika Prasad on a pad of Jaiswal Frozen Food Carrier, a copy of which has been annexed as paper no.C 28/1. Perusal of the certificate indicates that it has been prepared on a pre signed paper, which is undated and it has also not been proved by the person who has issued the same or any employee of the company. Therefore it has rightly not been believed by the learned Tribunal and the larned Tribunal has rightly assessed the income of the deceased as Rs. 3000/-per month in view of the judgment of the Hon'ble Apex Court in the case of Lakshmi Devi and others versus Mohd. Tabbar and another;(2008) 12 Supreme Court Cases 165. 14. So far as the question of future prospects and conventional head are concerned, the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Prany Sethi and Others (Supra) in paragraph 59.4 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 warrant where the deceased was below the age of 40 years. The Hon'ble Apex Court further in paragraph 59.8 has held that reasonable figures on conventional heads namely loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/-and Rs.15,000/-but the tribunal has allowed Rs.2500/-, Rs.5000/-and Rs.2000/-respectively only. The relevant paragraphs 59.4 and 59.8 are reproduced as under:- "59.4. The Hon'ble Apex Court further in paragraph 59.8 has held that reasonable figures on conventional heads namely loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/-and Rs.15,000/-but the tribunal has allowed Rs.2500/-, Rs.5000/-and Rs.2000/-respectively only. The relevant paragraphs 59.4 and 59.8 are reproduced as under:- "59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. 59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/-and Rs. 15,000/-respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years." 15. In the present case, the deceased was of 40 years of age therefore claimant/appellants are entitled for addition of 40% towards future prospects. They are also entitled for Rs.15,000/-Rs.40,000/- and Rs.15,000/- towards loss of estate, loss of consortium and funeral expenses respectively in place of Rs.2500/-Rs.5000/-and Rs.2000/-. The plea of the respondent that no ground has been taken is misconceived because a specific ground has been taken that the learned tribunal has lost the sight of just compensation which includes all compensation for which the claimants are entitled in the facts and circumstances of the case even if any of it has not been claimed. The Hon'ble Apex Court, in the case of Ramla Vs. National Insurance Co.Ltd.; (2019) 2 SCC 192 , has held that a "just compensation" is one which is reasonable, based on evidence produced on record and courts are duty bound to award just compensation under the 1988 Act and grant of amount in excess of claimed is permissible. 16. Lastly, learned counsel for the appellants had submitted that the interest has been awarded at the rate of 6% in place of 7% on which there was no opposition by the other side and in accordance with the rules claimants/appellants are entitled for interest at the rate of 7%. Hence the same is liable to be enhanced. 17. 16. Lastly, learned counsel for the appellants had submitted that the interest has been awarded at the rate of 6% in place of 7% on which there was no opposition by the other side and in accordance with the rules claimants/appellants are entitled for interest at the rate of 7%. Hence the same is liable to be enhanced. 17. In view of above, the finding recorded by the learned Tribunal in regard to the contributory negligence is not sustainable and is liable to be set aside and this court is of the considered opinion that the judgment and award passed by the learned Tribunal is liable to be modified and the appellants/ claimants are held entitled to a compensation, which is calculated as follows:- 1. Income @ Rs.3000/- per month Rs.36,000/- 2. Deduction @ 1/3rd Rs.12000/- 3. Multiplier; (15) 24000/-x15 Rs.3,60,000/- 4. Future Prospects (40%) Rs.1,44,000/- 5. Loss of Estate Rs.15,000/- 6. Loss of Consortium Rs.40,000/- 7. Funeral expenses Rs.15,000/- Total (3+4+5+6+7) Rs.5,74,000/- 18. Thus this First Appeal From Order No. 776 of 2010 is partly allowed and the judgment and award dated 26.02.2010 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.2, Lucknow in Claim Petition No.59 of 2001(Smt. Asha Jaiswal and others versus Param Jeet Singh and another) is modified accordingly as indicated in Paragraph no.17 above. The respondent No. 2 i.e National Insurance Co. Ltd is directed to make the payment of Rs.5,74,000/-alongwith interest @ 7% per annum from the date of filing of Claim Petition till the date of payment after adjusting the amount already paid, if any, to the appellants/claimants within a period of eight weeks from today. No order as to costs.