JUDGMENT : J.C. DOSHI, J. 1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant-Reliance General Insurance Company Ltd. being aggrieved and dissatisfied with the judgment and award dated 30.03.2017 passed by the Motor Accident Claims Tribunal, Patan in Motor Accident Claim Petition No. 69 of 2013. 1.1. On service of summons, claimants have filed Cross Objection for enhancement of claim amount. 2. Brief facts of the case are as under: 2.1. That on 18.02.2013, deceased who is Driver was driving Truck No. GJ-12-Y-9332 and at 10.30 pm, when it reached near accidental place, one Truck No. GJ-12-X-0585 was stationery on the road and driver of the said truck had not put parking signals and as a result, truck driven by deceased dashed with stationary truck. On occurrence of incident, deceased sustained injuries and died. 3. Heard learned advocate Mr. Vibhuti Nanavati for the Reliance General Insurance Company, learned advocate Mr. Tanmay Karia for New India Insurance Company Ltd. and learned advocate Mr. Kaash Thakkar for original claimant. 4. Reliance General Insurance Company is insurer of Truck No. GJ-12-Y-9332, New India Insurance Company Ltd. is insurer of Truck No. GJ-12-X-0585 and in the present case, driver of truck No. GJ-12-Y-9332 has died. 5. Learned advocate Mr. Nanavati assailing impugned judgment and award submitted that learned Tribunal has committed serious error in attributing 60% negligence to the deceased-Ishwarbhai Rajabhai Thakore who was driver of truck No. GJ-12-Y-9332. He submits that accident took place at about 10.30 night, where, another truck No. GJ-12-X-0585 was stationary on highway of Harij-Bortadav Road, between Maheshwari Kanta and Patel Cotton Ginning, near Radhe Shyam Residency plots without switching on parking lights or any signal. He would further submit that deceased Ishwarbhai who was driving another truck could not notice stationary truck as there was no parking signal and dashed with stationary truck from behind resulting into his death. He would submit that looking to the facts of the case, deceased is not negligent in causing road accident. It is also submitted that in the present case, driver of the stationary truck did not enter into witness box. Further it is submitted that in this given circumstances, principle of res ipsa loquitur applies to the case. Panchnama being best piece of evidence did not show that driver of the stationary truck has taken due care to avoid accident viz. Further it is submitted that in this given circumstances, principle of res ipsa loquitur applies to the case. Panchnama being best piece of evidence did not show that driver of the stationary truck has taken due care to avoid accident viz. no signal were applied and therefore, driver of the said truck is to be held 100% negligent. Therefore, it is submitted to allow the appeal and exonerate Insurance Company from liability to pay compensation. 6. On the other hand, learned advocate Mr. Tanmay Karia supports impugned judgment and submits that in the case of Raj Rani vs. Oriental Insurance Company Ltd. (2009) 13 SCC 654 , in identical situation, the Hon'ble Apex Court has held driver of truck who dashed from behind equally negligent in causing road accident. Therefore, it is submitted to dismiss the appeal. 7. Learned advocate Mr. Thakkar for the claimants submitted that deceased was not negligent in causing road accident. He supports argument made by learned advocate Mr. Nanavati as far as issue of negligence is concerned. He also quarrels with computation of just compensation. He submits that learned Tribunal failed to notice that deceased was driver of heavy vehicle. He had skilled to drive heavy vehicle and thus, taking minimum wages as income of deceased is incorrect approach on the part of the learned Tribunal. He referred to the case of Hon'ble Apex Court in Chandra @ Chanda @ Chandraram Vs. Mukesh Kumar Yadav in Civil Appeal No. 6152 of 2021 to submit that since deceased was skilled driver his income should be taken as Rs. 8,000/- per month for the purpose of loss of dependency. He also submits that learned Tribunal also failed to grant proper compensation on other heads. Therefore, it is submitted that claim amount should be recalculated on the basis of judgment of Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Shethi, (2017) 16 SCC 680 . 8. I have heard learned advocates for both the sides, also perused Record and Proceedings of the claim petition. 9. What could be discern that learned Tribunal while attributing 60% negligent to the deceased-Ishwarbhai did not gave any reasons. What learned Tribunal has done is reproduced some part of panchnama and then straightway jumped to attributing negligence to both the truck driver. 9. What could be discern that learned Tribunal while attributing 60% negligent to the deceased-Ishwarbhai did not gave any reasons. What learned Tribunal has done is reproduced some part of panchnama and then straightway jumped to attributing negligence to both the truck driver. Learned Tribunal did not assign a single reason to reach ratio of contributing negligent of both the driver. 9.1. It is not in dispute that truck No. GJ-12-X-0585 was stationary. Accident took place at 10.30 night near Radhe Shyam Residency plots as truck driven by deceased Ishwarbhai rammed to stationary truck. Panchnama of place of accident on record at Exh.26 indicates that driver of stationary truck had not kept any signal or blinker which could be noticed from reasonable distance helping vehicle from behind in avoiding accident. Principle of res ipsa loquitur applies in the present case. It is noticeably that driver of the stationary truck did not enter into witness box to depose correct facts and explain why he had kept truck stationary on highway. Section 122 of Motor Vehicle Act prohibits leaving vehicle in dangerous position in road. Section 126 of the Motor Vehicle Act is more relevant, it prohibits from keeping any vehicle stationary in public place unless the mechanism has been stopped and a brake or brakes applied or such other measures taken as to ensure that other vehicle cannot collide with it. Section 126 of the Motor Vehicle Act reads as under: “126. Stationary vehicles - No person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place, unless there is in the drivers seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other measures taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver.” 10. Rule 15 of the Road Regulations, 1989 is also relevant, which reads as under: “15. Parking of the vehicle: (1) 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 the manner of parking is indicated by any sign board or markings on the road side, he shall park his vehicle in such manner. (2) A driver of a motor vehicle shall not park his vehicle: (i) at or near a road crossing, a bend, top of a hill or a humpbacked bridge. (ii) on a foot-path. (iii) near a traffic light or pedestrian crossing. (iv) in a main road or one carrying fast traffic. (v) opposite another parked vehicle or as obstruction to other vehicle. (vi) alongside another parked vehicle. (vii) on roads or at places or roads where there is a continuous white line with or without a broken line. (viii) near a bus stop, school or hospital entrance or blocking a traffic sign or entrance to a premises or a fire hydrant. (ix) on the wrong side of the road. (x) where parking is prohibited. (xi) away from the edge of the footpath.” 11. Driver of the stationary truck therefore, has to come into witness box to depose before the Court that he has followed rules and regulations and has taken due care while keeping his truck stationary to avoid accident. However, he did not step into witness box. Learned advocate appearing for Insurance Company did not point out any reason for driver to avoid producing his evidence as why insurance company has not secured the deposition of the driver. Therefore, it is fit case to take adverse inference. Learned advocate Mr. Karia at this stage has argued that FIR was filed against deceased-Ishwwarbhai who was driver of Truck No. GJ-12-Y-9332 but reading FIR at Exh.25 indicates that it is filed by Cleaner of said Truck. Statement made in the FIR indicates that he was sleeping at the time when road accident took place and woke up only after it collided with other truck. Therefore, he is not eye witness to the road accident and his version could not be considered as gospel truth to consider negligence of driver of the truck. 12. Judgment in the case of K. Anusha vs. Regional Manager, Shriram General Insurance Company Ltd. 2021 (3) Apex CJ (SC) 761 can be taken assistance for deciding this issue. Para 13 is relevant, which reads as under: “13. Therefore, the entire reasoning of the High Court on Issue No. 1 is riddled with inherent contradictions. To establish 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. Para 13 is relevant, which reads as under: “13. Therefore, the entire reasoning of the High Court on Issue No. 1 is riddled with inherent contradictions. To establish 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. In Pramodkumar Rasikbhai Jhaveri vs. Karmasey Kunvargi Tak and Others this Court quoted a decision of the High Court of Australia in Astley v. Austrust Ltd. to hold that “......where, by his negligence, one party places another in a situation of danger, which compels that 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 statement of law in Swadling v. Cooper, that “......the mere failure to avoid the collision by taking some extraordinary precaution, does not in itself constitute negligence....” was also quoted with approval by this Court. Therefore, we are compelled to reverse the finding of the Tribunal and the High Court on the question of contributory negligence.” 13. In the case of Sushma vs. Nitin Ganpati Rangole, (2024) 9 SC CK 0018, the Hon'ble Supreme Court in Para 27, 28 and 33 has held as under: “27. A highway or a road is a public place as defined in Section 2(34) of the Act: “2(34) “public place” means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage.” 28. Section 121 of the Act provides that the driver of a motor vehicle shall make such signals and, on such occasions, as may be prescribed by the Central Government. 33. These legal provisions leave no room for doubt that the person in control of the offending truck acted in sheer violation of law while abandoning the vehicle in the middle of the road and that too without taking precautionary measures like switching on the parking lights, reflectors or any other appropriate steps to warn the other vehicles travelling on the highway. Had the accident taken place during the daytime or if the place of accident was well illuminated, then perhaps, the car driver could have been held equally responsible for the accident by applying the rule of last opportunity. But the fact remains that there was no illumination at the accident site either natural or artificial. Since the offending truck was left abandoned in the middle of the road in clear violation of the applicable rules and regulations, the burden to prove that the placement of the said vehicle as such was beyond human control and that appropriate precautionary measures taken while leaving the vehicle in that position were essentially on the person in control of the offending truck. However, no evidence was led by the person having control over the said truck in this regard. Thus, the entire responsibility for the negligence leading to the accident was of the truck owner/driver.” 14. Determining issue of negligence, what could be noticed that driver of stationary truck is more negligent. He has not taken due and proper care while keeping truck stationary on highway. He did not step into witness box to explain why he had kept truck stationary on highway. Legally driver was required to explain whether there was any mechanical fault or any other reasons. Therefore, section 126 of Motor Vehicle Act and Rule 15 of the Road Regulations runs contrary to the driver of stationary truck, raising legal presumption that he is more negligent then deceased. Accident took place at 10.30 night. It was February month expected to be dark at that time. As per panchang, it was not a full moon light night. Panchang shows moon rise time around 12.00 pm. Moreover, driver of stationary truck had not put any side, signals or brake down were applied. However, at the same time deceased was driving heavy vehicle and also required to take proper care. He has also failed in taking care. Place of accident is near residential plots. Though panchnama has not noted any public light was available, yet it could be presumed that there must be some light near residential plots. Therefore, while appreciating negligence of drivers of both vehicles, it can be apportioned in the ratio of 25%-75%. Driver of stationary truck is held negligent upto 75%, whereas, deceased is held negligent upto 25%. Deceased was paid driver. Therefore, while appreciating negligence of drivers of both vehicles, it can be apportioned in the ratio of 25%-75%. Driver of stationary truck is held negligent upto 75%, whereas, deceased is held negligent upto 25%. Deceased was paid driver. Compensation equal to negligence of deceased is to paid by the appellant as premium is paid by the Insurance Company. 15. Next question is about assessing just and fair compensation. Learned Tribunal has taken up income of Rs. 6,000/- in absence of any documentary evidence but while taking so learned Tribunal has held that deceased was holding heave driving license. In identical fact situation, Hon'ble Apex Court in the case of Chandra (supra), after referring to judgment in the case of Minu Rout vs. Satya Pradyumna Mohapatra, (2013) 10 SCC 695 and judgment in the case of Kirti vs. Oriental Insurance Company Ltd. (2021) 2 SCC 166 pleased to take Rs. 8,000/- per month as income of the deceased for the purpose of loss of dependency. Para 10 of the said judgment reads as under: “10. It is the specific case of the claimants that the deceased was possessing heavy vehicle driving licence and was earning Rs. 15,000/- per month. Possessing such licence and driving of heavy vehicle on the date of accident is proved from the evidence on record. Though the wife of the deceased has categorically deposed as AW1 that her husband Shivpal was earning Rs. 15,000/- per month, same was not considered only on the ground that salary certificate was not filed. The Tribunal has fixed the monthly income of the deceased by adopting minimum wage notified for the skilled labour in the year 2016. In absence of salary certificate the minimum wage notification can be a yardstick but at the same time cannot be an absolute one to fix the income of the deceased. In absence of documentary evidence on record some amount of guesswork is required to be done. But at the same time the guesswork for assessing the income of the deceased should not be totally detached from reality. Merely because claimants were unable to produce documentary evidence to show the monthly income of Shivpal, same does not justify adoption of lowest tier of minimum wage while computing the income. There is no reason to discard the oral evidence of the wife of the deceased who has deposed that late Shivpal was earning around Rs. Merely because claimants were unable to produce documentary evidence to show the monthly income of Shivpal, same does not justify adoption of lowest tier of minimum wage while computing the income. There is no reason to discard the oral evidence of the wife of the deceased who has deposed that late Shivpal was earning around Rs. 15,000/- per month. In the case of Minu Rout & Anr. v. Satya Pradyumna Mohapatra & Ors. this Court while dealing with the claim relating to an accident which occurred on 08.11.2004 has taken the salary of the driver of light motor vehicle at Rs. 6,000/- per month. In this case the accident was on 27.02.2016 and it is clearly proved that the deceased was in possession of heavy vehicle driving licence and was driving such vehicle on the day of accident. Keeping in mind the enormous growth of vehicle population and demand for good drivers and by considering oral evidence on record we may take the income of the deceased at Rs. 8,000/- per month for the purpose of loss of dependency. Deceased was aged about 32 years on the date of the accident and as he was on fixed salary, 40% enhancement is to be made towards loss of future prospects. At the same time deduction of 1/3 rd is to be made from the income of the deceased towards his personal expenses. Accordingly the income of the deceased can be arrived at Rs. 7467/- per month. By applying the multiplier of ‘16’ the claimants are entitled for compensation of Rs. 14,33,664/-. As an amount of Rs. 10,99,700/- is already paid towards the loss of dependency the appellant-parents are entitled for differential compensation of Rs. 3,33,964/-. Further in view of the judgment of this Court in the case of Magma General Insurance Company Limited v. Nanu Ram @ Chuhru Ram & Ors. the appellants are also entitled for parental consortium of Rs. 40,000/- each. The finding of the Tribunal that parents cannot be treated as dependents runs contrary to the judgment of this Court in the case of Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. The judgment in the case of Kirti & Anr. the appellants are also entitled for parental consortium of Rs. 40,000/- each. The finding of the Tribunal that parents cannot be treated as dependents runs contrary to the judgment of this Court in the case of Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. The judgment in the case of Kirti & Anr. v. Oriental Insurance Company Limited relied on by the counsel for the respondent would not render any assistance in support of his case having regard to facts of the case and the evidence on record.” 16. This Court deems it fit to take loss of dependency at Rs. 8,000/- per month. 40% for loss of future prospects is required to be granted and multiplier of 16 is required to be applied considering age of claimant as 34 years. 1/4 amount is required to be deducted towards personal and pocket expenses as there are six dependents. Compensation under loss of consortium, pain shock and suffering, funeral expenses etc. deserves to be modified in terms of judgment of Hon'ble Apex Court in the case of Pranay Shethi (supra). Just compensation which could be granted to the claimants is calculated as under. 17. Therefore, total compensation would be as under, which the claimants/s is/are entitled to get. Particulars Amount Future dependency Loss Rs. 8,000/- per month + 40% prospective rise = Rs. 11,200/- and applying 16 multiplier, total amount would be Rs. 21,50,400/- and deducting 1/4 amount towards personal expenses. Total amount would be Rs. 16,12,800/- (Rs. 21,50,400/- minus Rs. 5,37,600/-) Rs. 16,12,800/- Loss of consortium (Rs. 48,400/- x 6) Rs. 2,90,400/- Funeral expenses Rs. 18,150/- Loss of estate Rs. 18,150/- Medical expenses Rs. 58,485/- Total Rs. 19,97,985/- Less: amount which is already awarded Rs. 15,70,885/- Additional amount which is awarded Rs. 4,27,100/- 18. Therefore, I hold that the claimants are entitled to get the enhanced compensation of Rs. 4,27,100/- with 9% p.a. interest from the date of filing the claim petition till its realisation, which would meet the ends of justice. 19. In view of above, the appeal filed by Reliance Insurance Company Ltd. is allowed. Deceased-Ishwarbhai is held to be negligent upto 25% in causing road accident, whereas, driver of stationary truck is held negligent upto 75%. Cross Objection is also allowed in aforesaid terms. 20. 19. In view of above, the appeal filed by Reliance Insurance Company Ltd. is allowed. Deceased-Ishwarbhai is held to be negligent upto 25% in causing road accident, whereas, driver of stationary truck is held negligent upto 75%. Cross Objection is also allowed in aforesaid terms. 20. Enhanced amount of compensation with 9% interest per annum shall be deposited within a period of eight weeks from the date of receipt of this order. If excess amount is deposited by appellant-Insurance Company-Reliance General Insurance Company Ltd. it shall be refunded to the appellant with accrued interest. 20.1. The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimants in equal proportion i.e. 50% to the widow and remaining 50% shall be disbursed equally among claimants nos.2 to 6, by account payee cheque/NEFT/RTGS, after proper verification and after following due procedure. 20.2 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law. 20.3 Record and proceedings be sent back to the concerned Tribunal, forthwith.