ORDER : Rekha Borana, J. 1. The present appeal has been preferred against the judgment and award dated 02.12.2023 passed by Motor Accident Claims Tribunal No.1, Bhilwara in MAC Case No.225/2018 (CIS No.227/2018) whereby the learned Tribunal proceeded on to pass an award for an amount of Rs.15,84,814/- with interest @6% per annum in favour of the claimants. 2. The learned Tribunal although computed the award for an amount of Rs.21,13,086/- but then deducted an amount qua 25% contributory negligence of the deceased and hence, awarded Rs.15,84,814/- only. 3. It is the said finding of contributory negligence of the deceased which is under challenge in the present appeal as preferred by the claimants along with a prayer for enhancement of the award. 4. Learned counsel for the appellants submits that the learned Tribunal misinterpreted naksha mauka and held the deceased too negligent for the accident. He submits that as is settled position of law, the naksha mauka cannot be termed to be a piece of evidence so as to prove the negligence of the driver. In support of his submission counsel relied upon the Hon’ble Apex Court judgment in Jiju Kuruvila & Ors. Vs Kunjujamma Mohan & Ors.; 2013 (9) SCC 166 . 5. Learned counsel submits that the learned Tribunal erroneously recorded a finding regarding the deceased driver not wearing a helmet whereas contrary was proved on record. 6. Learned counsel further submits that looking to the number of dependants of the deceased, a deduction qua personal expenses ought to have been 1/4th only whereas the learned Tribunal made the same to the extent of 1/3rd of the income. 7. No other ground has been raised by learned counsel for the claimants. 8. Per contra learned counsel for the respondent-Insurance Company submits that it was clearly proved on record that the deceased was negligent while crossing the road as the vehicle i.e. the car in question was moving straight from Neemuch to Mandsaur but the deceased was not vigilant while crossing the road on the turn and hence, the accident occurred. 9. Responding to the argument regarding the deduction qua the personal expenses, counsel submits that the same was rightly deducted as all the children of the deceased were major and his father could also not have been termed to be a dependant. 9. Responding to the argument regarding the deduction qua the personal expenses, counsel submits that the same was rightly deducted as all the children of the deceased were major and his father could also not have been termed to be a dependant. Therefore, the number of dependants i.e. wife, one handicapped daughter and the mother being three in number, called for deduction of 1/3rd of the income. 10. Heard learned counsel for the parties and perused the material available on record. 11. So far as the finding recorded by learned Tribunal regarding contributory negligence of the deceased on the premise that he was not holding a valid driving license and was not wearing a helmet is concerned, the same deserves interference by this Court. 12. Firstly, AW-3 Laxmi Lal clearly deposed that the deceased was wearing a helmet and the said statement of Laxmi Lal has been misread by the learned Tribunal. So far as the deceased being negligent because of not having a driving license is concerned, as held by the Hon’ble Apex Court in Sudhir Kumar Rana Vs Surinder Singh & Ors.; (2008) 12 SCC 436 , a person cannot be termed to be negligent for the sole reason that he did not have a driving license. The negligence is to be seen on the facts of the case. The Hon’ble Apex Court in Sudhir’s case (supra) held as under:- “8. If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini-truck who was driving rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence. 9. The matter might have been different if by reason of his rash and negligent driving, the accident had taken place”. 13. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence. 9. The matter might have been different if by reason of his rash and negligent driving, the accident had taken place”. 13. Secondly, the finding recorded by the learned Tribunal on the basis of naksha mauka also deserves interference in view of the ratio laid down by the Hon’ble Apex Court in case of Jiju Kuruvila (supra). The Hon’ble Apex Court therein observed as under:- “24. The mere position of the vehicles after accident, as shown in a Scene Mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction etc. depends on number of factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident caused, but in absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual.” 14. Further, the finding of the deceased being negligent could not have been termed to be proved on record also for the reason that there was no cross-examination of the eye witnesses on the said aspect on behalf of the Insurance Company. No question, even no suggestion, whatsoever, was made to the witnesses regarding the negligence on the part of the deceased. 15. The Hon’ble Apex Court in the case of Minu Rout & Ors. Vs Satya Pradyumna Mahapatra & Ors.; (2013) 10 SCC 695 while dealing with issue of contributory negligence in accident therein held the finding of Tribunal and as affirmed by the High Court “erroneous for want of proper consideration of pleadings and legal evidence.” The Hon’ble Apex Court observed as under: “17...The Tribunal, on appreciation of the oral and documentary evidence, has recorded the erroneous finding by placing strong reliance upon the charge-sheet-Exh. 1 without considering the fact that the criminal case was abated against the deceased and further has made observation in the judgment that the Appellants had not produced the FIR. Therefore, it has held that there was 50% contributory negligence on the part of the deceased driver in causing accident. The Tribunal ought to have seen that non production of FIR has no consequence for the reason that charge sheet was filed against the truck driver for the offences punishable Under Sections 279 read with Section 302 of Indian Penal Code read with the provisions of the M.V. Act. The Insurance Company, though claimed permission Under Section 170(b) of the Motor Vehicles Act, 1988 from the Tribunal to contest the proceedings by availing the defence of the owner of the offending vehicle, it did not choose to examine either the driver of the truck or any other independent eye witness to prove the allegation of contributory negligence on the part of the deceased Susil Rout on account of which the accident took place as he was driving the car in a rash and negligent manner. In the absence of rebuttal evidence adduced on record by the Tribunal, the Tribunal should not have placed reliance on the charge-sheet-Exh. 1 in which the deceased driver was mentioned as an accused and on his death; his name was deleted from the charge sheet. The Tribunal has referred to certain stray answers elicited from the evidence of P.W. 2 and P.W. 3 in their cross-examination and placed reliance on them to record the finding on issue No. 1. 18. For the aforesaid reasons, the findings and reasons recorded by the Tribunal on the contentious issue No. 1 holding that there is contributory negligence on the part of the deceased driver in the absence of legal evidence adduced by the Insurance Company to prove the plea taken by it that accident did not take place on account of rash and negligent driving of the truck driver is erroneous in law.” 16. The above observation lays down a ratio that the person who alleges contributory negligence is under the onus to prove the same by cogent pleadings and evidence. The said position is settled on basis of the basic principle of law that one who alleges a fact is under a burden/onus to prove the same. The above observation lays down a ratio that the person who alleges contributory negligence is under the onus to prove the same by cogent pleadings and evidence. The said position is settled on basis of the basic principle of law that one who alleges a fact is under a burden/onus to prove the same. In the specific opinion of this Court, the respondent-Insurance Company miserably failed to prove any negligence on the part of the deceased. The finding as recorded by the learned Tribunal therefore is not in consonance with the evidence as led by the parties. The finding on Issue No.4 as recorded by the learned Tribunal is therefore set aside same and is hereby held that the deceased was not negligent for the accident in question. 17. So far as the deduction of 1/3rd of the income qua the personal expenses is concerned, the same is totally in consonance with the ratio laid down in Sarla Verma and Ors. Vs. Delhi Transport Corporation and Ors.; (2009) 6 SCC 121 . As evident on record, all the children of the deceased were major even at the time of filing of the claim petition. The father of the deceased could not be termed to be his dependant and hence, only the wife, the daughter who has been averred to be handicapped and the mother of the deceased were the dependants. The said number of dependants being three, the deduction of 1/3rd qua the personal expenses was rightly made by the learned Tribunal. 18. Further the Hon’ble Apex Court, in the case of National Insurance Company Limited Vs. Pranay Sethi and Ors.; (2017) 16 SCC 680 , has fixed the amount payable under the conventional heads, namely, loss of estate, loss of consortium and funeral expenses to be Rs.15,000/-, Rs.40,000/- and Rs.15,000/-respectively, Therefore, this Court is of the opinion that the said amount already having been awarded by the learned Tribunal does not deserve any interference. 19. In view of the above, the present appeal is partly allowed. The amount awarded vide judgment and award dated 02.12.2023 is hereby modified to the extent that the appellant-claimants shall be entitled for the complete award amount of Rs. 21,13,086/- in terms of the award as passed by the learned Tribunal, as under: 1. 19. In view of the above, the present appeal is partly allowed. The amount awarded vide judgment and award dated 02.12.2023 is hereby modified to the extent that the appellant-claimants shall be entitled for the complete award amount of Rs. 21,13,086/- in terms of the award as passed by the learned Tribunal, as under: 1. Loss of Annual Income (on addition of (10%) future prospects and personal deduction of (1/3rd) to annual income of Rs.2,33,440/- and applying multiplier of 11 as per the age of deceased i.e. 52 years) Rs.18,83,086 2. Under the head of ‘Consortium’ 40,000x5= Rs.2,00,000/- 3. Under the head of ‘Loss of estate’ Rs.15,000/- 4. Under the head of ‘Funeral expenses’ Rs.15,000/- 5. Total amount of compensation Rs.21,13,086/- 20. The modified amount of Rs.5,28,271/- shall carry interest @6% from the date of filing of the claim petition till the actual payment is made. The respondent insurance company is directed to deposit the award amount (if not deposited yet) and the amount of Rs.5,28,271/- (with interest) with the Tribunal within a period of two months from the date of receipt of the copy of this order, failing which, the same shall carry interest @7.5% per annum from the date of this order till actual realization. Upon deposition, the learned Tribunal is directed to disburse the same to the claimants in terms of the award. 21. All pending applications, if any, stand disposed of.