Judgment Mrs. Archana Puri, J. Challenge in the twin appeals is to the Award dated 27.09.2017 passed by learned Motor Accident Claims Tribunal, whereby, compensation was granted to the claimants-appellants, on account of death of Harjinder Singh @ Gollu, in a motor vehicular accident. 2. On appraisal of the evidence brought on record, vide impugned Award, compensation was granted to the claimants-appellants, to the extent of Rs.19,57,000/- together with the interest component. Even, the liability of the respondents (in the claim petition) was held to be joint and several. 3. Feeling aggrieved with the findings recorded by learned Tribunal, qua the fact of accident and manner of its taking place as well as the extent of compensation granted, the insurance company has filed appeal bearing FAO-1116-2018. However, thereby seeking enhancement of the compensation, the claimants-appellants have filed the appeal bearing FAO-5822-2018. 4. For the convenience of the discussion, the parties are referred as claimants and respondents, as making appearance before the Tribunal. 5. As per version of the claimants-appellants, on 22.07.2015, Harjinder Singh @ Gollu was driving the motorcycle bearing registration No.PB-11A-7452 along with his cousin Raj Singh, who was pillion rider and they were proceeding to Rajindra Hospital, Patiala, to see their ailing grandmother. The motorcycle was being driven on the left side of the road and when they reached near petrol pump, Village Swajpur, a truck/trailer bearing registration No.PB-06F-7649 was parked in the middle of the road, without any parking indicators. Due to the glare of the lights of the vehicles, coming from the opposite direction, the truck/trailer could not be spotted and the motorcycle rammed into the truck/trailer, causing multiple and grievous injuries to Harjinder Singh @ Gollu, which proved fatal. Raj Singh, with the help of passerby, had shifted the body of Harjinder Singh to Rajindra Hospital, Patiala, where his post-mortem was conducted. It is the specific claim about the accident to have taken place, due to the rash and negligent act of the driver of the truck/trailer, who had parked it, in the middle of the road, without any parking indicators. Relating to this accident, the police had only lodged a formal DDR. 6. However, in reply, respondents No.1 and 2, who are driver and owner of the offending truck/trailor, have admitted about the factum of lodging of the DDR, but however, they claimed that there was no fault on the part of respondent No.1. Relating to this accident, the police had only lodged a formal DDR. 6. However, in reply, respondents No.1 and 2, who are driver and owner of the offending truck/trailor, have admitted about the factum of lodging of the DDR, but however, they claimed that there was no fault on the part of respondent No.1. However, the insurance company, in its separate reply, besides raising various objections, relating to the driver of the offending vehicle, not having a legal and valid driving licence, permit, fitness certificate and registration certificate, also had taken the plea that the deceased was under the influence of alcohol, at the time of accident. Also, it is asserted about the false DDR having got lodged and the truck/trailer bearing registration No.PB-06F-7649, has been falsely planted in the case. 7. To so substantiate their claim, claimant No.1-Manjit Kaur had herself stepped into witness box as CW-1 and further also examined Raj Singh, occupant of the ill-fated motorcycle as CW-2. However, respondents No.1 and 2 had themselves not stepped into witness box and they had only tendered into evidence, various documents. In fact, the insurance company was proceeded against ex-parte, when the case was at the stage of the recording of the respondent evidence. 8. Now, at the very outset, learned counsel for the insurance company submits that there are two versions, coming forth, qua the manner of occupancy of the ill-fated motorcycle. As per the claimants-appellants, Harjinder Singh @ Gollu was driving the motorcycle, at the relevant time, but however, as per CW-2 Raj Singh and also the contents of the DDR, reflect about Raj Singh, to be driving the motorcycle himself and that Harjinder Singh @ Gollu was a pillion rider. Even, it is submitted that it is a case of contributory negligence, which aspect, has been over-looked by learned Tribunal. Thus, blameworthiness has been erroneously fastened solely upon the driver, owner and insurer of the truck/trailer bearing registration No.PB-06F-7649. 9. However, on the other hand, learned counsel for the claimants-appellants has submitted that in fact, the testimony of Raj Singh, as such, cannot be overlooked, as he was occupant of the motorcycle, in question, at the relevant time. He was on the driver seat. 9. However, on the other hand, learned counsel for the claimants-appellants has submitted that in fact, the testimony of Raj Singh, as such, cannot be overlooked, as he was occupant of the motorcycle, in question, at the relevant time. He was on the driver seat. Even though, claimants have so asserted about Harjinder Singh @ Gollu to be driving the motorcycle, but however, the DDR is the first version, qua the accident coming forth, which was got recorded at the instance of Raj Singh and he has categorically stated about himself to be driving the motorcycle and that Harjinder Singh @ Gollu was a pillion rider. Furthermore, it is also pointed that while in the witness box, it is his categoric claim that he was driving the motorcycle. Qua the plea of contributory negligence, so raised, at the behest of insurance company, it is submitted that the very fact of Raj Singh, having not sustained injuries, establish about the effort made, at his instance, to avert the accident. 10. It has been rightly so pointed out by learned counsel for the insurance company about there to be two versions, coming forth, qua the occupancy of the ill-fated motorcycle. But anyhow, learned Tribunal had rightly observed that the claimants had not witnessed the accident. In fact, Raj Singh was accompanying the deceased, at the relevant time and in the DDR, Ex.CW2/B got recorded at his instance, he had specifically submitted about himself to be driving the motorcycle in question and that Harjinder Singh @ Gollu was a pillion rider. So much is also stated by Raj Singh, in his affidavit Ex.CW2/A, when he was examined as a witness. 11. So, in view of the testimony of Raj Singh and also considering the recitals of the DDR, it stands amply established that Harjinder Singh @ Gollu was a pillion rider. Even though, the claimants in the claim petition had stated about Harjinder Singh @ Gollu to be driving the motorcycle and that Raj Singh was a pillion rider, but however, it matters not much, as it does not wipe out the rash and negligent act of the driver while parking the truck/trailer. 12. Undoubtedly, from the material put forth, it stands established that the motorcycle struck the stationary trailer from backside. 12. Undoubtedly, from the material put forth, it stands established that the motorcycle struck the stationary trailer from backside. Much emphasis has been laid upon the recitals of the DDR, about there to be no fault, on the part of any person, as it was only on account of glare of lights, that the accident had taken place. However, it is pertinent to mention that striking of the motorcycle on the backside of the trailer, is one aspect, which has to be considered, in the backdrop of the other circumstances spelt out. It is the specific version of the claimants that accident had taken place, due to rash and negligent act of the driver of the trailer, who had parked the same, in the middle of the road, without any parking indicator. However, respondent No.1-Jagdeep Singh, who, in the capacity of being driver of the truck/trailer, was best person to depose about having parked the offending vehicle, while taking due precautions, has not stepped into witness box. Even, owner of the offending vehicle, has not stepped into witness box. 13. In view of the same, it is required to be taken note of, that the motorcycle rammed in the stationary truck/trailer. However, despite the same, Raj Singh, who was driving the motorcycle, as such, has not sustained any injury, which in itself, is a pointer about there to be conscious effort, on the part of Raj Singh, to avert the strike of his vehicle, but unfortunately, Harjinder Singh @ Gollu, fell the victim. 14. To establish the contributory negligence, some act or omission, which materially contributed to the accident or the damage, should be attributed to the person, against whom, it is alleged. Where, by his negligence, one party placed another in a situation of danger, which compels the other to act quickly, in order to extricate himself, it does not amount to contributory negligence, if that other acts, in a way which with the benefit of hindsight is shown not to have been the best way out of the difficulty. In fact, the mere failure to avoid the collision by taking some extraordinary precaution, does not in itself constitute negligence. 15. In fact, the mere failure to avoid the collision by taking some extraordinary precaution, does not in itself constitute negligence. 15. In the case in hand, since Raj Singh had not sustained any injury, despite striking of the motorcycle, it itself establish about there to be an attempt made, on the part of the Raj Singh, to avoid the collision. 16. Considering the fact of Raj Singh having not sustained any injury and pillion rider having fallen victim to the strike, establish about the conscious effort, on the part of Raj Singh, to have avoided the strike, but it happened. This conscious effort itself gives the distinction and nullifies the plea of contributory negligence, on the part of driver of the motorcycle. Thus, the submission of contributory negligence to be there, on the part of the driver of the motorcycle, holds no ground. 17. In this backdrop, let us consider the compensation, to be so granted to the claimants-appellants. It is the specific claim of the claimants-appellants about the deceased to be working as labourer and earning Rs.8500-9000/- per month. The widow of the deceased has stepped into witness box as CW-1 and in her affidavit Ex.CW1/A, has also categorically stated about the indulgence of the deceased in labour work. Even though, she had stated his earnings to be Rs.8500-9000/- per month, but there is no documentary evidence, coming on record, regarding this extent of earnings. 18. However, it is pertinent to mention that learned Tribunal had erroneously worked upon the earnings of the deceased, while considering the minimum wages of a skilled labourer, as Rs.8887/- per month, which was w.e.f 01.03.2016. Firstly, the deceased was not a skilled labourer, as so assessed. He was indulging into labour work only and it was never the case of the claimants-appellants that deceased was a skilled labourer. Thus, the earnings of the deceased has to be assessed as an unskilled labourer. The minimum wages, which have been worked upon, are on the basis of the Notification No.ST/472 dated 12.04.2016, issued by Labour Department, Punjab. However, the letter issued by Labour Commissioner, Punjab, which was applicable to make assessment of the earnings of the deceased is No.8232-8377 dated 24.04.2015. As per the same, the monthly earnings of an unskilled labourer was Rs.6847.75, which is now rounded off as Rs.6848/-. This has to be considered as earnings of the deceased, at the relevant time. However, the letter issued by Labour Commissioner, Punjab, which was applicable to make assessment of the earnings of the deceased is No.8232-8377 dated 24.04.2015. As per the same, the monthly earnings of an unskilled labourer was Rs.6847.75, which is now rounded off as Rs.6848/-. This has to be considered as earnings of the deceased, at the relevant time. 19. The number of dependents upon the deceased, are three. Thus, in view of Smt. Sarla Verma vs. Delhi Transport Corporation and anr., 2009(3) RCR (Civil) 77, the deduction ought to be made, to the extent of 1/3rd. As such, after making deduction of 1/3rd, the loss of dependency comes to be Rs.4,566/- per month. 20. The deceased is stated to be 26 years old, at the time of accident. Even, in the post-mortem report, which has been proved as Ex.CW1/C, the age of the deceased is stated to be 26 years. Thus, it stands established that the deceased was 26 years old, at the relevant time. Considering the age of the deceased and looking at the avocation, so followed by him, as per National Insurance Company Limited vs. Pranay Sethi and others, 2017(4) RCR (Civil) 1009, addition of 40% has to be made, on the count of ‘future prospects’, to the earnings of the deceased, as now worked upon and thus, the amount comes to be Rs.4566+1826(40%) =Rs.6392/- per month. Therefore, annual dependency comes to be Rs.6392x12=Rs.76,704/-. The suitable multiplier, as per Sarla Verma’s case (supra), is ‘17’. Thus, after applying the multiplier of ‘17’, the loss of dependency comes to be Rs.76,704 x 17= Rs.13,03,968/-. 21. In view of the guidelines laid down in Magma General Insurance Company Ltd. vs. Nanu Ram @ Chuhru Ram and others, 2018 (18) SCC 130 and Pranay Sethi’s case (supra), all the appellants-claimants, who are widow, minor son and father of the deceased, are entitled to compensation for ‘loss of consortium’, to the extent of Rs.44,000/- each. Even though, learned Tribunal had granted compensation to the extent of Rs.1 lakh, per claimant, on the count of ‘love and affection’ to each of the claimant, but however, it is pertinent to make reference to the decision rendered by the Hon’ble Supreme Court in Magma’s case (supra), wherein, it is laid down that ‘loss of love and affection is comprehended in loss of consortium’. Hence, there is no justification to award compensation towards ‘loss of love and affection’, as a separate head, which view was further endorsed in The New Assurance Company Limited vs. Smt. Somwati and others, Civil Appeal No.3093 of 2020, decided on 07.09.2020. 22. Besides the same, funeral expenses had been granted to the extent of Rs.25,000/-, which is on higher side. As per Pranay Sethi’s case (supra), the claimants are entitled to Rs.15,000/- for the funeral expenses as well as Rs.15,000/- for the loss of estate, which requires 10% enhancement, after a period of three years, which has since passed by. As such, the claimants-appellants, are entitled to compensation, Rs.16,500/- on the count of ‘funeral expenses’ and Rs.16,500/- for ‘loss of estate’. 23. Thus, loss of dependency comes to be Rs.13,03,968/-, loss of consortium comes to be Rs.1,32,000/- (Rs.44,000/- to each of the appellant), Rs.16,500/- as funeral expenses and Rs.16,500/-, as loss of estate. Therefore, the total comes to be Rs.14,68,968/-. Thus, the compensation, so awarded by learned Tribunal is reduced from Rs.19,57,000/- to Rs.14,68,968/-. 24. The apportionment and disbursement of the amount of compensation, as now worked upon, shall be made amongst appellants, as ordered by learned Tribunal. The impugned Award dated 27.09.2017 stands modified, to the extent, as indicated aforesaid. The remaining terms of the impugned Award, shall remain same. 25. With the above observations, the appeal filed by the insurance company i.e. FAO-1116-2018 stands partly accepted, whereas, appeal filed by the claimants-appellants i.e. FAO-5822-2018 stands dismissed.