JUDGMENT : Nupur Bhati, J. 1. The instant civil misc. appeal no. 1042/2017 has been preferred by the appellant/Insurance Company under Section 173 of the Motor Vehicles Act, 1988 (hereinafter as ‘the Act’) assailing the judgment and award dated 18.01.2017 (hereinafter as ‘the impugned award’) passed by learned Judge, Motor Accident Claims Tribunal, Pali (hereinafter as ‘the learned Tribunal’) in MAC Case No. 76/2017 whereby the learned Tribunal partly allowed the claim petition filed by the appellant/claimants under Section 166 of the MV Act and awarded compensation of Rs.39,02,085/-, in favour of respondent/claimants along with interest @ 9% p.a. from the date of filing the claim petition, while fastening the liability upon the respondent no.7/owner and respondent no.6/driver along with the appellant/Insurance Company, jointly and severally. 2. Briefly stated the facts of the case are that on 08.09.2014, Sikandar Khan, Gopilal@Goparam, Mahaveer Singh and Bharat Mehta were travelling in the car bearing registration no. RJ19 temperory 183688, which was being driven by Bharat Mehta (hereinafter as ‘the driver of the car’), (hereinafter as ‘the car’) from Balotara to Loonkaransar and at around 7:00 AM- 7:30AM the truck-trolla bearing registration no. GJ12AT9222 (hereinafter as ‘the offending vehicle’), which was being driven rashly and negligently by respondent no.6/driver came from the opposite side and dashed into the car. As a result of the accident all the four persons travelling in the car died on the spot. The FIR no. 86/2014 (Ex.4) was lodged and the police after investigation filed chargesheet (Ex.2) against the respondent no.6/driver under Section 279,304A, IPC. Subsequently, the MAC case no. 76/2015 was filed by the respondent/claimants under Section 166 of the Act claiming compensation on account of the death of Mahaveer Singh (hereinafter as the deceased) before the learned tribunal. 4. The respondent no.6/driver and respondent no.7/owner of the offending vehicle were proceeded against ex-parte as the notices served upon them did not return even after the expiry of 30 days from the service upon them. 5. The appellant/insurance company in its reply to the claim petitions denied the averments made thereunder and averred that the accident occurred due to the negligence of driver of the car and the driver of the car himself is liable for contributory negligence. 6. 5. The appellant/insurance company in its reply to the claim petitions denied the averments made thereunder and averred that the accident occurred due to the negligence of driver of the car and the driver of the car himself is liable for contributory negligence. 6. On the basis of the pleadings of the parties, the learned tribunal framed four issues which are being reproduced as under: 1- vk;k vizkFkhZ la- ,d dqynhiflag us fnukad 08-09-2014 dks le; lqcg 08%00 cts 'kksHkkflag pkSjkgs ds ikl tSlkuk gksVy ds ikl okgu Vªksyk la[;k th- ts-&12&,-vh-&9222 dks mlds Lokeh vizkFkhZ la- nks iounhiflag ds fu;kstu ,oa fu;a=.k esa jgrs gq, rst xfr o ykijokgh ls pykdj nq?kZVuk dkfjr dh] ftlesa e`rd egkohjflag ds pksVsa dkfjr gksdj muls mldh e`R;q gqbZ \ &izkFkhZx.k& 2- vk;k vizkFkhZ la- rhu chek daiuh vius tokc izkFkZuk i= ds izkjfEHkd vkifRr;ksa o fo'ks"k dFkuksa ds vk/kkj ij bl izfrdj izkfIr ds izkFkZuk i= esa izfrdj vnk;xh ds nkf;Ro ls eqDr gksus ;ksX; gS \ &vizkFkhZ&rhu& 3- vk;k izkFkhZx.k izfrdj izkfIr gsrq izLrqr bl izkFkZuk i= esa pkgh xbZ izfrdj jkf'k ;k vU; dksbZ U;k;laxr izfrdj jkf'k vizkFkhZx.k ls izkfIr ds vf/kdkjh gSa] ;fn gk¡ rks fdl dnj \ &izkFkhZx.k& 4- vuqrks’k \ 7. The claimants examined two witnesses namely- Indubala (AW-1) and Mohan Singh Rathore (AW-2) and produced 16 documentary evidences (from Ex.1 to Ex.16). However, no evidence was produced by the appellant/insurance company. 8. The respondents/claimants contended before the learned tribunal that the accident occurred due to the rash and negligent driving of the respondent no.6/driver of the offending vehicle. And the police after investigation have filed the Chargesheet (Ex.2) against the respondent no.6/driver. 9. On the other hand, it was contended by the insurance company before the learned tribunal that the car, being driven in a rash and negligent manner, collided with the offending vehicle therefore, the driver of the car should be held liable for contributory negligence to the extent of 50% and as the owner and insurance company of the car has not be made a party the claim petition is not maintainable. 10. 10. After hearing both the parties and perusing the material available on the record, the learned tribunal partly allowed the claim petitions filed by the respondents/claimants and awarded compensation of, Rs.39,02,085/- along with interest @9 % p.a. from the date of filing the claim petition, while fastening the liability upon the respondent no.6/driver, the respondent no.7/owner of the offending vehicle along with the appellant/Insurance Company, jointly and severally. 11. Aggrieved by the same the appellant/insurance company has preferred the instant misc. appeal challenging the impugned award passed in the MAC case nos. 76/2015. 12. The learned counsel appearing on behalf of the appellant/insurance company submitted that the learned tribunal has erred in deciding the issue with respect to the negligence of the respondent no.6/driver of the offending vehicle solely on the basis of the final report (Ex.2) while ignoring the fact that the Site plan or site inspection memo has not been produced by the claimants. He further submitted that, although it is well settled that the documents prepare by the police during the discharge of their official duty are admissible in the evidence however, the Final report prepared by the police is not binding upon the learned tribunal and the learned tribunal has to decide the claim on the basis of the material produced before it. He further submitted that in the present case the claimants have failed to discharge their burden to prove that the accident occurred due to the negligence of the respondent/driver of offending vehicle, which is sine qua non to sustain a claim petition under Section 166 of the Act. For this submission he placed reliance on the judgment of the Hon’ble Supreme Court in Oriental Insurance Co. Ltd. v. Meena Variyal, (2007) 5 SCC 428 (para 27), Oriental Insurance Co. Ltd. v. Premlata Shukla, (2007) 13 SCC 476(para 10) and Nishan Singh v. Oriental Insurance Co. Ltd., (2018) 6 SCC 765 . 13. For this submission he placed reliance on the judgment of the Hon’ble Supreme Court in Oriental Insurance Co. Ltd. v. Meena Variyal, (2007) 5 SCC 428 (para 27), Oriental Insurance Co. Ltd. v. Premlata Shukla, (2007) 13 SCC 476(para 10) and Nishan Singh v. Oriental Insurance Co. Ltd., (2018) 6 SCC 765 . 13. The learned counsel appearing on behalf of the appellant/insurance company, while placing reliance upon the site plan, site inspection memo and the photographs of the spot of the accident, submitted that it is evident from these documents that the offending vehicle was being driven by the respondent no.6/driver in the correct lane however, the car, which was being driven at a high speed which is evident from marks of break on the road as visible in the photographs taken by the police, crossed the center line of the road into the wrong side and dashed into the offending vehicle as shown in the site plan prepared by the police. He further submitted, while relying on the photographs of the spot of the accident and the site plan, that the car was being driven at such high speed that its position changed into the direction from where it was coming. He further submitted, that the offending vehicle was being driven in its correct lane as the offending vehicle capsized beside its correct lane which is evident from the photographs of the spot of the accident. Thus, he submitted, while placing reliance on these documents that it was the driver of the car who was negligent in causing the accident and not the respondent no.6/driver of the offending vehicle. 14. The learned counsel appearing on behalf of the appellant/insurance company has also challenged the quantum of compensation as awarded by the learned tribunal. He submitted that the learned tribunal has erred in awarding future prospect @50% despite the fact that the deceased was not in a permanent job. He also challenged quantum of compensation as awarded by the learned tribunal under the heads of consortium, loss of estate and funeral expenses. He also submitted that the future prospect ought to have been be awarded @40% instead of @50% as the deceased was not in a permanent job. 15. He also challenged quantum of compensation as awarded by the learned tribunal under the heads of consortium, loss of estate and funeral expenses. He also submitted that the future prospect ought to have been be awarded @40% instead of @50% as the deceased was not in a permanent job. 15. Per contra, the learned counsel appearing on behalf of the respondents/claimants submitted at the outset that the question of contributory negligence does not arise as the deceased was an occupant of the vehicle. He further submitted that the finding with respect to contributory negligence cannot be given merely relying upon the site plan and more so where the insurance company has not produced any evidence in this regard and for this submission he placed reliance upon the judgment of this court in Kailash Kunwar and ors. v. Nawal Singh and ors.[S.B. CMA 746/2017]. He further submitted that the learned tribunal has rightly decided the issue of negligence against the respondent no.6/driver of the offending vehicle. He further submitted that the learned tribunal has erred in applying multiplier of 15 instead of 16 as the age of the deceased at the time of accident was 35 years and the applicable multiplier to the age group of 31 - 35 years is 16 as per the ratio of the judgment of the Hon’ble Supreme Court in Sarla Verma v. DTC, (2009) 6 SCC 121 . 16. In rebuttal the learned counsel appearing on behalf of the appellant/insurance company submitted that the learned tribunal has rightly applied the multiplier of 15 as the deceased was 35 years 4 months 3 days thus, he was above the age of 35 years and therefore, would not fall within the age group of 31 – 35. 17. I have considered the contentions raised by the parties and have perused the material available. 18. This court finds that the Hon’ble Supreme Court in Sunita v. Rajasthan SRTC, (2020) 13 SCC 486 , while dealing with issue of contributory negligence held that in absence of any ocular evidence to prove and explain the contents of site plan, a finding of negligence on the part of claimant/deceased cannot be recorded. “36. The site plan (Ext. 3) has been produced in evidence before the Tribunal by witness AD 1 (Appellant 1 herein) and the record seems to indicate that the accident occurred in the middle of the road. “36. The site plan (Ext. 3) has been produced in evidence before the Tribunal by witness AD 1 (Appellant 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 much less proved through a competent witness by the respondents to substantiate their defence. Besides, the police official concerned 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, more so in absence of ocular evidence to prove and explain the contents of the site plan. 37. Be it noted that the evidence of witness AD 2 (Bhagchand) unequivocally states that Respondent 2 bus driver was negligent in driving recklessly at a high speed on the wrong side of the road, thus, resulting in the accident which caused the death of Sitaram. It was not open to the High Court to discard this evidence. Additionally, the Tribunal had justly placed reliance on the contents of FIR No. 247 of 2011 (Ext. 1) and charge-sheet (Ext. 2) which prima facie indicate the negligence of Respondent 2 in driving the bus. We once again remind ourselves of the dictum in Dulcina Fernandes [Dulcina Fernandes v. Joaquim Xavier Cruz, (2013) 10 SCC 646 : (2014) 1 SCC (Civ) 73 : (2014) 1 SCC (Cri) 13] and thereafter in Mangla Ram [Mangla Ram v. Oriental Insurance Co. Ltd., (2018) 5 SCC 656 : (2018) 3 SCC (Civ) 335 : (2018) 2 SCC (Cri) 819], and answer the factum of negligence of the driver of the offending vehicle against the respondents.” Thus, in absence of any ocular evidence or some witness to explain the contents of the site plan and moreover, where the chargsheet and other materials prima facie shows the negligence of the offending vehicle, a finding of contributory negligence on the part of claimant cannot be given merely on the basis of site plan. 19. 19. It is important to note here that the initial burden to prove the negligence of the offending vehicle lies on the claimants, however, the standard of proof to discharge such burden is preponderance of probability and not proof beyond reasonable doubt as have been held by the Hon'ble Supreme court in the case of Sunita(Supra), the relevant paragraph of the aforesaid judgement is as under: “22. It is thus well settled that in motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal's role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases.” In the present case, the claimants have brought on record the FIR, Site plan, seizure memo of the offending vehicle and also the chargesheet filed by the police against the respondent no.6/driver of the offending vehicle. And the perusal of these documents makes out a prima facie case against the respondent no.6/driver of the offending vehicle thus, the initial burden to prove the negligence on the part of the respondent no.6/driver of the offending vehicle was discharged by the claimants on the touchstone of preponderance of probability. However, the insurance company has neither produced any evidence nor examined the respondent no.6/driver before the learned tribunal to assert that the accident did not occur due to the negligence of the offending vehicle. 20. Further, in the present case the claimants produced FIR (Ex.4), which was filed on same date as that of the accident, the chargesheet (Ex.2) filed against the respondent no.6/driver of the offending vehicle, site plan, the seizure memo of the offending vehicle to prove the negligence of the respondent no.6/driver of the offending vehicle. However, the insurance company did not produce any evidence apart from contending that the chargesheet cannot be the sole basis to record a finding of negligence on the part of the respondent no.6/driver of the offending vehicle. However, the insurance company did not produce any evidence apart from contending that the chargesheet cannot be the sole basis to record a finding of negligence on the part of the respondent no.6/driver of the offending vehicle. Moreover, the insurance company did not challenge the veracity of the Chargesheet (Ex.2) before the learned tribunal. Thus, in absence of any contrary evidence being produced by the insurance company, the tribunal has rightly decided the issue pertaining to the negligence of the respondent no.1/driver on the touchstone of preponderance of probability, while placing reliance upon the material available on record. Moreover, with respect to the deceased, it cannot be said to be a case of contributory negligence as the deceased was an occupant of the car and even for the sake of argument it if the contributory negligence of the driver of the car was established then too it would have been a case of composite negligence inasmuch as the deceased is concerned. 21. Now, as far as the contention of the learned counsel appearing on behalf of the appellant/insurance company with respect to quantum of the compensation as awarded by the learned tribunal is concerned, this court is of view that the amount awarded by the learned tribunal under the head of consortium deserves to be modified to Rs.48,400/- to each of the five claimants in the light of the judgment of the Hon’ble Supreme Court in National Insurance Co. Ltd. v. Pranay Sethi[ (2017) 16 SCC 680 ]. Further, the amount awarded by the learned tribunal towards the heads of funeral expenses and loss of estate also deserves to be modified to Rs.18,150/- towards both the aforesaid heads in the light of the judgment of the Hon’ble Supreme Court in Pranay Sethi(Supra). 22. Further, this court finds that the learned tribunal has erred in applying the multiplier of 15, which is applicable to the age group of 36 to 40, as the age of the deceased was 35 years 4 months 3 days at the time of the accident, as such he had not completed the age 36 years. 22. Further, this court finds that the learned tribunal has erred in applying the multiplier of 15, which is applicable to the age group of 36 to 40, as the age of the deceased was 35 years 4 months 3 days at the time of the accident, as such he had not completed the age 36 years. Thus, this court, in light of the judgment of the Hon’ble Supreme Court in Shashikala v. Gangalakshmamma, (2015) 9 SCC 150 is of the view that the applicable multiplier should be of 16, which is applicable to the age group of 31 – 35 years, as the deceased had not completed the age of 36 years as on the date of his death. Further, this court finds that the learned tribunal has erred in awarding future prospect @50% and the same ought to have been @40 in the light of Pranay Sethi (Supra) as the deceased was not in a permanent job. 23. Thus, in view of the discussion in the above paragraphs, the compensation, that is payable to the claimants is as under: S.No. Particulars Amount as awarded by the learned tribunal Amount as awarded/modified by this court 1. (add) Compensation towards loss of dependency: 2,00,123(annual) + 80,050 (future prospect @40%) – 70,043 (1/4 deduction on account of personal expenses) x 16 (Multiplier) = Rs.33,62,080/- [A] Rs.33,77,085/- Rs.33,62,080/- 2. (add) Loss of Consortium 48,400 x 5 = 2,42,000/- [B] Rs. 4,00,000/- Rs.2,42,000/- 3. (add) Funeral Expenses [C] Rs.25,000 /- Rs.18,150/- 4. (add) Loss of Estate [D] Rs.1,00,000/- Rs. 18,150/- Gross Total [A]+[B]+[C]+[D] Rs.39,02,085/- [E] Rs.36,40,380/- [F] Reduced Amount [E]-[F] Rs.2,61,705/- 24. Therefore, in view of the discussion in the above paragraphs, the instant appeal is partly allowed to the extent of quantum of compensation. Accordingly, the impugned award passed by the learned tribunal stands partly modified and the respondents/claimants are thus held entitled to get compensation of Rs.36,40,380/- instead of Rs.39,02,085/-, along with interest @9% p.a.(same as awarded by the learned tribunal) from the date of filing of the claim petition. 25. The respondents/claimants are held entitled to get the compensation as determined/modified by this court in the same manner as directed by the learned tribunal. The amount of compensation if any paid or disbursed shall be adjusted. 26. Record be set back forthwith. 27. No order as to costs.