JUDGMENT : C. JAYACHANDRAN, J. 1. The appeal is preferred by the third respondent/Insurance Company in O.P. (M.V.) No. 975/2016 of the Motor Accidents Claims Tribunal, Perumbavoor. The claimants preferred the above cross objection. The fatal accident occurred on 10.4.2016, at the mid night, when the motor cycle driven by the deceased hit on the rear side a crane, which was parked on the road side. 2. Heard Sri. Mathews Jacob, learned Senior Counsel, instructed by Smt. Preethy R. Nair on behalf of the appellant and Sri. A.N. Santhosh, learned counsel for respondents 1 to 6 (petitioners in the cross objection). Perused the records. 3. Learned Senior Counsel for the appellant/Insurance Company contended that the deceased was under the spell of alcohol at the time of accident, as could be seen from the wound certificate, where the smell of alcohol is recorded. However, the Tribunal attributed entire negligence on the driver of the crane, based on the final report and awarded compensation. Neither the driver nor the owner of the crane contested the matter. Although the policy is admitted, the Tribunal should have found that the accident occurred due to the negligence on the part of the deceased; or at least should have found contributory negligence as against him, is the submission of the learned Senior Counsel for the Insurance Company. 4. The second contention is based on the quantum of compensation granted. According to the learned counsel for the appellant, Rs. 9,500/- was taken as monthly income, without any supporting proof. Two other heads, which are not liable to be reckoned in cases of death, namely ‘pain and suffering’ and ‘love and affection’ have been reckoned at Rs. 15,000/- and Rs. 50,000/- respectively, which is contrary to the prevailing law, is the submission. 5. Per contra, learned counsel for the respondents (petitioners in the cross objection) submitted that the Tribunal rightly found negligence on the driver of the crane relying upon Ext.A5 final report in the crime registered, warranting no interference by this Court. It was submitted that the monthly income reckoned is grossly insufficient. The claimants sought for a monthly income of Rs. 30,000/- in the capacity of the deceased as the owner cum driver of a tipper lorry, his driving licence being produced as Ext.A10 and the R.C particulars of the lorry as Ext.A11. Despite these, the Tribunal only reckoned Rs. It was submitted that the monthly income reckoned is grossly insufficient. The claimants sought for a monthly income of Rs. 30,000/- in the capacity of the deceased as the owner cum driver of a tipper lorry, his driving licence being produced as Ext.A10 and the R.C particulars of the lorry as Ext.A11. Despite these, the Tribunal only reckoned Rs. 9,500/- as monthly income, which is less than the index available in Ramachandrappa vs. The Manager, Royal Sundaram Alliance Insurance Company Ltd. (2011) 13 SCC 236 even for a Coolie. Learned counsel relied upon the judgment of the Honourable Supreme Court in Minu Rout and Another vs. Satya Pradyumna Mahopatra and Others, (2013) 10 SCC 695 to point out that in respect of an accident which took place in 2004 and in a case where a sum of Rs. 5,000/- alone was claimed as monthly income, the Honourable Supreme Court took note of the fact that the claimant therein, being a driver and skillfully employed, is entitled to a monthly income at Rs. 6,000/- per month. 6. Another contention of the petitioners in the cross objection is that no compensation was awarded under the head consortium. Learned counsel submitted that the deceased, a 47 year old man, is survived by his wife, three children and father, each being entitled to Rs. 40,000/- towards consortium. 7. Having heard the learned counsel appearing on both sides, this Court will first address the issue of contributory negligence, the main issue involved in this appeal. 8. In Swadling vs. Cooper, (1931) AC 1, the House of Lords defined contributory negligence as the rule that although there may have been negligence on the part of the plaintiff, yet unless he might, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence, he was entitled to recover, but if by ordinary care he might have avoided them, he was the author of his own wrong. In Halsbury's Laws of England [3rd Edition, Volume 28, paragraph 92] the concept of contributory negligence is lucidly depicted thus: “In an action for injuries arising from negligence, it was a defence at common law if the defendant proved that the plaintiff, by some negligence on his part, directly contributed to the injury in the sense that his negligence formed a material part of the effective cause thereof. When this is proved the plaintiff's negligence is said to be contributory. It is now enacted by the Law Reform (Contributory Negligence) Act, 1945 that where any person suffers damage the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage is not to be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.” 9. In Nance vs. British Columbia Electric Railway Company Ltd. (1951) AC 601, it was held that what was necessary to establish the defence of contributory negligence was to prove to the satisfaction of the jury that the injured party did not in his own interest take reasonable care of himself and contributed by this want of care, to his own injury, for, when contributory negligence was set up as a shield against the obligation to satisfy the whole of the plaintiff's claim, the principle involved was that, where a man was part author of his own injury, he could not call upon the other party to compensate him in full. 10. Before addressing the facts, it is necessary to refer to Regulation 15(1) of the Rules of Road Regulations, 1989, which provides that every driver of a motor vehicle parking on any road shall park in such a way that it does not cause or is not likely to cause danger, obstruction or undue inconvenience to other road users and if the manner of parking is indicated by any sign board or markings on the road side, he shall park his vehicle in such manner. Clause (iv) of Regulation 15(2) provides that the driver of a motor vehicle shall not park his vehicle in a main road or one carrying fast traffic. 11. With this, the attendant facts are to be taken note of. The fatal accident took place on 10.4.2016, at 00.15 hours. The motor cycle driven by the deceased collided on the rear side of a crane parked on the road, with the result, the deceased succumbed to the fatal injuries sustained. 11. With this, the attendant facts are to be taken note of. The fatal accident took place on 10.4.2016, at 00.15 hours. The motor cycle driven by the deceased collided on the rear side of a crane parked on the road, with the result, the deceased succumbed to the fatal injuries sustained. The deceased was proceeding in the Vallam-Aalattuchira public road, which is lying in the east-west direction, the deceased moving towards east from west. There exists evidence in the form of Ext.A5 final report in Crime No. 456/2016 of the Kodanad Police Station, a crime registered in connection with the instant incident. The following contents of the final report are relevant and extracted herein-below: It is thus clear from Ext.A5 final report that the rear side of the vehicle was parked encompassing the middle portion of the road and that there were no signal light put on. There is no evidence to show that a separate sign board was exhibited behind the crane, which was parked on the road side, with one-half of the vehicle being in the limits of tarred portion of the road. The fact that the vehicle was so parked in the midnight adds gravity to the negligence. The above facts would clearly establish the negligence on the part of the driver of the crane. 12. What requires to be ascertained now is whether there was any contributory negligence on the part of the deceased. This Court may straight away observe that once the parking of the vehicle on the tarred portion of the road is established, which, in turn, establishes the negligence on the part of the driver of the vehicle so parked, the burden indubitably lies on the defendant, who sets up contributory negligence as a defence. In the written statement, the third respondent/insurance company specifically sets up the defence of contributory negligence, though as an alternative to the complete negligence sought to be attributed to the deceased. 13. There is no material before this Court to show that the deceased was under the spell of alcohol, although learned counsel for the appellant canvassed for such a factual position. According to the learned counsel, reference to smell of alcohol is available in the wound certificate, which, however, is neither produced before the Tribunal, nor before this Court. In such circumstances, negligence cannot be attributed to the claimant/deceased. According to the learned counsel, reference to smell of alcohol is available in the wound certificate, which, however, is neither produced before the Tribunal, nor before this Court. In such circumstances, negligence cannot be attributed to the claimant/deceased. This Court notice that the burden has not been assumed by the third respondent/insurance company, inasmuch as it did not chose to adduce any evidence, oral or documentary, whatsoever. The claimants produced documentary evidence in Exts.A1 to A11, of which Ext.A5 is the charge sheet. There exists no evidence to show that the deceased was driving the motor cycle in a very high speed; or that his motor cycle was having any inherent defect, so as to contribute to the accident caused. Ext.A3(a) is the report of the Assistant Motor Vehicle Inspector, who certifies that the vehicle was not having any mechanical defect. It could thus be seen that there exists no evidence, whatsoever, to indicate that there was any negligence on the part of the deceased. 14. This Court will now refer to the binding precedents on the point. The issue fell for consideration of the Hon'ble Supreme Court very recently in Jumani Begam vs. Ram Narayan and Others, (2020) 5 SCC 807 . The facts are similar that the motor cycle driven by the deceased collided with a truck trailer, which was parked on the road. The Tribunal assigned contributory negligence @ 50% on the deceased, which was confirmed by the High Court. On the evidence adduced, the Hon'ble Supreme Court found that no reflectors were exhibited at the spot. The evidence also did not suggest that the truck trailer had been parked outside the area of pakka road. In such circumstances, the Hon'ble Supreme Court held that the finding of the Tribunal that the deceased could have avoided the accident by exercising due diligence is nothing but a mere surmise. The following observation of the Hon'ble Supreme Court is relevant and extracted herein-below: “7.........Once the substantive evidence before MACT established that the truck trailer had been parked on the road at night without any reflectors, we are of the view that there was no reason or justification for MACT to proceed on the basis of conjecture in arriving at a finding of contributory negligence.” 15. A Division Bench of this Court had occasion to consider the question in Ramachandran V. and Another vs. Narendra Sinh and Others, 2016 (2) KHC 318 . In this case, the deceased, who was driving a Maruti-800 car, while attempting to overtake a bus, dashed against a lorry, which was parked on the side of the National Highway. This Court found that the lorry was parked on the tarred surface of the road to an extent of at least one meter. On the basis of such finding, the Division Bench overturned the decision of the Tribunal holding that the accident occurred due to the negligence of the deceased alone. It was also found that the deceased, as also, the driver of the lorry, both, were negligent. 16. A detailed discussion encompassing the law on the subject can be found in a decision of Delhi High Court in Pushpa Rani Chopra and Others vs. Anokha Singh and Others, 1975 ACJ 396 . Morris vs. Luton Corporation, (1946) 1 KB 114, was relied upon to find that there was no rule of law that a person driving in the dark must be held to be negligent, if he was driving at such a speed that he was not able to pull up within the limits of his vision. The Delhi High Court held that the excessiveness of the speed has to be determined as a question of fact in the circumstances of each case on the basis of evidence on record. After elaborate discussion, the finding of the Tribunal that the deceased was guilty of contributory negligence was reversed. The liability was fixed on the driver of the truck and its insurance company. It is relevant to note that the facts at hand are more or less similar to the decision in Pushpa Rani Chopra (supra), where also, a truck was parked in the main road and the motor cyclist dashed against the stationary truck. Pushpa Rani Copra (supra) was followed by the High Court of Punjab and Haryana in Nirmal Bhutani and Others vs. Haryana State and Another, AIR 1983 P&H 188, where also, the facts are comparable that a Fiat Car ran into a road roller, which was parked on the road, resulting in the death of two occupants in the car. Pushpa Rani Copra (supra) was followed by the High Court of Punjab and Haryana in Nirmal Bhutani and Others vs. Haryana State and Another, AIR 1983 P&H 188, where also, the facts are comparable that a Fiat Car ran into a road roller, which was parked on the road, resulting in the death of two occupants in the car. Reference was made to Section 81 of the Motor Vehicles Act, which deals with leaving a vehicle in a dangerous position and it was held as follows, in paragraph no. 16 of the judgment: “16. There is a basic fallacy in the argument of the learned Advocate-General. Where a motor vehicle is left parked on a highway in such a manner that it constitutes a hazard or danger to road users, the onus must be held to be upon one who seeks to avoid liability arising from an accident with such vehicle, to establish that despite such parking of the motor vehicle, the accident took place due to a fault or negligence of the other party or that such other party could have avoided the accident by reasonable care and caution. No such evidence or circumstances exist in the present case.” In paragraph 18, the High Court of Punjab and Haryana recognised the right of a person travelling in a highway to proceed at a reasonable speed, unless there is a traffic and other obstruction in the road to slow it down. The court found that in the course of such travel, a road roller standing in the road was a grave and unexpected hazard for road users and it constituted a breach of duty of care on the part of the driver of the road roller to other road users. 17. In the light of the above precedents, this Court finds that unless there exists specific evidence pointing to contributory negligence, if any, on the part of the deceased/injured, liability has to be fastened solely on the driver of the vehicle, who parked the same in the road limits of a Highway/public road. The legal position will certainly change, if it is established that the vehicle was parked outside the limits of the tarred portion of the road. The legal position will certainly change, if it is established that the vehicle was parked outside the limits of the tarred portion of the road. This Court is of the definite opinion that the tarred portion of a road is specifically meant to ply the vehicles and not to park vehicles, either temporarily or for a considerable duration. If such parking is necessitated by a break down or the like, sufficient indication should be given by lighting necessary indicators/reflectors, besides placing the sign boards behind the parked vehicle. No contributory negligence can be fastened on the deceased/injured merely for the reason that the offending vehicle was parked/stationed. Per contra, such parking in the road limits comes to the notice of the road users quite belatedly, especially at nights, leaving little room for applying the breaks and avoiding the collision. In the light of the above discussion, the finding of the Tribunal repelling contributory negligence is hereby confirmed. 18. Coming to quantum of compensation, the appellant would contend that reckoning Rs. 9,500/- itself is on the higher side and the petitioners in the cross objection would contend that Rs. 9,500/- is grossly insufficient. According to the learned counsel for the petitioners in the cross objection, the deceased was the owner cum driver of a tipper lorry, in respect of which claim, supporting evidence has been adduced by virtue of Exts.A10 and A11, the driving licence and R.C. particulars of the lorry. However, it remains a fact that no proof with respect to the income has been adduced. 19. In this context, it is relevant to take note of the finding of the Hon'ble Supreme Court in paragraph nos. 19 and 20 of Minu Rout (supra), wherein the facts are more or less similar. There, the deceased was a driver, who claimed Rs. 5,000/- per month for the purpose of computing loss of dependency. As in this case, no documentary evidence was adduced in proof of the specific income of the claimant. In Minu Rout (supra), the claimant however mounted the box and asserted his income as Rs. 5,000/-. The Hon'ble Supreme Court in paragraph no. 20 held that the post of a driver is a skilled job and, therefore, the Tribunal ought to have taken the monthly income at Rs. 6,000/- de hors the fact that the claimant had claimed only Rs. 5,000/-. 5,000/-. The Hon'ble Supreme Court in paragraph no. 20 held that the post of a driver is a skilled job and, therefore, the Tribunal ought to have taken the monthly income at Rs. 6,000/- de hors the fact that the claimant had claimed only Rs. 5,000/-. The Hon'ble Supreme Court held that it is in fact the duty of the Tribunal and the appellate court to assess and arrive at a just and reasonable monthly income based on attendant facts. 20. In this case, this Court, at any rate, should reckon the income specified in Sri Ramachandrappa vs. The Manager, Royal Sundaram Alliance Insurance Company Ltd. (2011) 13 SCC 236 , which is Rs. 10,500/- for the year 2016. This, coupled with the fact that the deceased was a driver, a skilled job, this Court is of the opinion that it would be just and reasonable to fix the compensation at Rs. 11,500/-. It is so done. 21. The next ground raised by the learned counsel for the petitioners in the Cross Objection is that no amount has been granted under the conventional head of consortium. Learned counsel submitted that inasmuch as the deceased is survived by five legal heirs, including wife, three children and father, all are entitled to Rs. 40,000/- each. It was also pointed out that while granting consortium, the amounts granted under the heads ‘pain and suffering’ and ‘love and affection’ has to be obliterated. The contention of the learned counsel for the petitioners in the cross objection appears to be reasonable and within the limits of law, and he .nce, liable to be accepted. Therefore, the compensation granted under the heads ‘pain and suffering’ and ‘love and affection’ are done away with, while granting compensation under the head ‘consortium’ for five persons, at the rate of Rs. 40,000/- each. 22. In the result, this appeal is dismissed and the Cross Objection is allowed. The petitioners in the Cross Objection will be entitled to compensation as indicated in the tabular statement shown herein-below: S. No. Head of Claim Amount awarded by the Tribunal Total amount after enhancement in appeal 1. Loss of dependency Rs. 13,89,375 Rs. 16,81,875* 2. Expenses for transport Rs. 8,000 Rs. 8,000 3. Damage to clothes Rs. 1,000 Rs. 1,000 4. Funeral expenses Rs. 15,000 Rs. 15,000 5. Love and affection Rs. 50,000 -- 6. Loss of consortium Rs. 40,000 Rs. 2,00,000 7. Loss of dependency Rs. 13,89,375 Rs. 16,81,875* 2. Expenses for transport Rs. 8,000 Rs. 8,000 3. Damage to clothes Rs. 1,000 Rs. 1,000 4. Funeral expenses Rs. 15,000 Rs. 15,000 5. Love and affection Rs. 50,000 -- 6. Loss of consortium Rs. 40,000 Rs. 2,00,000 7. Pain and suffering Rs. 15,000 -- 8. Extra nourishment Rs. 1,000 Rs. 1,000 9. Loss of estate Rs. 15,000 Rs. 15,000 10. Medical expenses Rs. 39,036 Rs. 39,036 Rs. 15,73,411 Rs. 19,60,911 Amount enhanced = Rs. 3,87,500/- (19,60,911 - 15,73,411) *(14,375 x 12 x 13 x 3/4) 23. The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amounts at the rate of 5% from the date of petition. If any amounts have already been paid, the same shall be granted set off. The claimant/s shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of the certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest on enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition.