JUDGMENT : (PER : HONOURABLE MR. JUSTICE MAULIK J.SHELAT) 1. Being aggrieved and dissatisfied with the judgment and award dated 21.07.2017 passed by the Motor Accident Claims Tribunal, Ahmedabad, in Motor Accident Claim Petition No. 176 of 2010, the original claimants as well as the Insurance Company have filed their respective first appeals i.e., First Appeal No. 3948 of 2017 filed by the claimants and First Appeal No. 2273 of 2018 filed by the Insurance Company, under Section 173 of the Motor Vehicles Act (hereinafter referred to as the M.V. Act) 2. For the sake of convenience, the parties shall be referred to as per their original positions before the Tribunal. BRIEF FACTS OF THE CASE 3. On 19.12.2009 at about 11:30 PM, the deceased - Darshinbhai was going from Ahmedabad to Gandhinagar in the car bearing registration number GJ-1-KA-6920 with his friends Jigneshbhai, Ashishbhai and Jitendrabhai, which was driven by deceased himself. When the car was passing through village Charodi, a truck bearing registration number GJ-9-X-7481 driven by original opponent No.1, after the crossing road wrongly, came all of a sudden and hit the driver side of the car. Due to such collision, the driver of the car i.e., Darshinbhai sustained grievous injuries and succumbed to it. 4. On 21.12.2009, Jitendrabhai Narendrabhai Rajput, who happens to be friend of deceased and an eyewitness, lodged an FIR against driver of truck under sections 279, 337, 304A of IPC read with sections 177 and 184 of M.V.Act, at Sarkhej Police Station, Ahmedabad and narrated the entire set of accident in FIR. 5. After investigating the offence in question, the police had filed a charge sheet at Exhibit 38 against the driver of the truck - the opponent No.1. The Claimants, being the legal heirs of the deceased - Darshinbhai, had filed a motor accident claim petition no.176 of 2010, under Section 166 of the Motor Vehicle Act, claiming compensation of Rs.1,00,00,000/- (one crore) for the death of Darshinbhai due to injuries sustained by him arising out of the use of motor vehicle. 6. The driver and owner of the truck, though served, chosen not to appear before the Tribunal. Therefore, no written statement was filed on their behalf. The Insurance Company of the truck appeared and filed its written statement at Exhibit 27, denying all the facts mentioned in the claim petition. 7. 6. The driver and owner of the truck, though served, chosen not to appear before the Tribunal. Therefore, no written statement was filed on their behalf. The Insurance Company of the truck appeared and filed its written statement at Exhibit 27, denying all the facts mentioned in the claim petition. 7. After appreciating the pleadings of the parties, the Tribunal framed issues at Exhibit 29 and answered them by passing an impugned judgment and award. 8. After appreciating the evidence on record and considering the submissions made by the parties, the Tribunal has found the deceased - Darshinbhai contributory negligent in the accident to the extent of 30% and the driver of the truck negligent to the extent of 70%. It awarded a total compensation of Rs.57,29,500/- with 7% interest from the date of the main petition till realization. 9. The original claimants as well as the opponent Insurance Company both are aggrieved by the impugned judgment and award and therefore, preferred their appeals on their respective grounds, which will be dealt with by this Court hereinafter. SUBMISSIONS OF THE APPELLANT - ORIGINAL CLAIMANTS 10. Learned advocate Mr. Nishit A. Bhalodi, appearing for the original claimants, would submit that the learned Tribunal committed a serious error while deciding issue no.1, i.e., negligence, whereby the Tribunal wrongly held the deceased negligent to the extent of 30% for causing the accident. He would submit that the learned Tribunal neither appreciated the documentary evidence filed by claimants nor appreciated the oral evidence of the complainant, who happens to be an eyewitness being an occupant of the car, in its true spirit, which resulted in an error on the part of the Tribunal holding the deceased contributory negligent to the extent of 30%. He would submit that when FIR and charge-sheet came to be filed against the driver of the truck, who remained absent before the Tribunal to rebut the allegation of his sole negligence, then, as per settled legal position of law, an adverse inference was required to be drawn against him. 10.1 He would further submit that the complainant, Jitendrabhai Narendrabhai Rajput, was examined by claimants at Exhibit 83, who happens to be an eyewitness, has narrated the entire accident. Even from his cross-examination, nothing adverse was found against deceased to hold him contributory negligent. 10.1 He would further submit that the complainant, Jitendrabhai Narendrabhai Rajput, was examined by claimants at Exhibit 83, who happens to be an eyewitness, has narrated the entire accident. Even from his cross-examination, nothing adverse was found against deceased to hold him contributory negligent. He would further submit that the car was going on the main highway (Sarkhej - Gandhinagar Highway), whereas the truck, after crossing the intersection on the main highway, was trying to enter the side of the highway where the car was passing through then as per road regulation No.8 and 9 of the Road Regulations, 1989, it was the duty of the truck driver to give way to the car, which was not observed by the truck driver. According to Mr. Bhalodi, learned advocate for the claimants, the driver of the truck violated Road Regulation, 1989 and due to his overt act, it resulted into collision between two vehicles. 10.2 He would further submit that, as per the panchnama drawn by the police after the accident, it would also clearly show that the driver's side of the car was completely damaged and the car was found on its correct side. According to the submission of learned advocate for the claimants, the Tribunal committed a serious gross error in holding the deceased - car driver negligent to the extent of 30%, which is contrary to evidence and law. 10.3 So far as granting compensation to the claimants is concerned, Mr. Bhalodi, the learned advocate appearing for the claimants would submit that the claimants have successfully proved the income of the deceased by examining the employer of the deceased at Exhibit 73, namely Ravibhai Ramlingam Mudaliyar, who has confirmed that he was used to pay Rs.45,000/- per month as a salary to the deceased. He has referred to the oral evidence of the employer at Exhibit 73 wherein the break-up of Rs.45,000/ was given by the witness, which is as under:- SR.No. BREAKUP OF DECEASED’S SALARY AMOUNT 01. Basic Pay 30,000/- 02. H.R.A. 5,000/- 03. Conveyance Allowance 7,500/- 04 Education 2,000/- 05. Special Allowance 500/- Total 45,000/- 10.4 He would further submit that payment vouchers as well as Form 16 and income tax returns filed by the deceased prior to the accident were submitted on record from Exhibit 51 to 52. Basic Pay 30,000/- 02. H.R.A. 5,000/- 03. Conveyance Allowance 7,500/- 04 Education 2,000/- 05. Special Allowance 500/- Total 45,000/- 10.4 He would further submit that payment vouchers as well as Form 16 and income tax returns filed by the deceased prior to the accident were submitted on record from Exhibit 51 to 52. According to learned advocate for the claimants, once the claimants have successfully proved the income of the deceased i.e., Rs.45,000/, there was no reason assigned by the Tribunal to consider it only Rs.30,000/. According to learned advocate for the claimants, the Tribunal has seriously erred while considering only Rs.30,000/ per month as the income of the deceased i.e. basic pay. He would submit that since there are four dependents of deceased, 1/4 personal expense ought to have been deducted instead of 1/3. 10.5 At last, he would submit that the Tribunal has not granted just and reasonable compensation under the conventional head and committed error in granting inadequate compensation to the claimants. He has requested this Court to consider conventional amount as per the ratio laid down by Hon’ble Supreme Court in case of National Insurance Company Limited Versus Pranay Sethi reported in 2017 (16) SCC 680 , MAGMA GENERAL INSURANCE CO. LTD. Versus NANU RAM & ORS. reported in 2018 (18) SCC 130 , UNITED INDIA INSURANCE CO LTD Versus SATINDER KAUR @ SATWINDER KAUR & ORS reported in 2021 (11) SCC 780 . Thus, he has requested this Court to grant just and reasonable compensation by considering aforesaid facts and evidence on record. SUBMISSION OF RESPONDENT - INSURANCE COMPANY 11. Learned advocate Mr. Vibhuti Nanavati appearing for the Insurance Company would submit that the Tribunal has not committed any error while holding the deceased 30% contributory negligent for causing the accident. He would submit that the deceased was driving his car on highway at night and was required to take due care and observe the oncoming traffic from the intersection on the highway, and failing in his duty, he met with an accident. He would submit that the deceased was also negligent by not avoiding a collision with truck. He would submit that the deceased was driving his car on highway at night and was required to take due care and observe the oncoming traffic from the intersection on the highway, and failing in his duty, he met with an accident. He would submit that the deceased was also negligent by not avoiding a collision with truck. 11.1 He would fairly accept that neither the driver of the truck nor the owner of the truck had appeared and filed his written statement and was also not in a position to dispute the fact that an FIR and charge-sheet were filed against the driver of the truck, who remained absent before the Tribunal. But according to the learned advocate, Mr. Nanavati, merely because the driver of the truck remained absent would not, ipso facto hold him solely negligent for causing the accident. Nonetheless, he would submit that the Tribunal was correct in holding the deceased contributory negligent to the extent of 30%, which may not be disturbed by this Court. 11.2 So far as the quantum of compensation awarded by the Tribunal is concerned, Mr.Nanavati, learned advocate appearing for the Insurance Company, would submit that in view of the subsequent developments in law and in view of the recent passed judgment of the Hon’ble Supreme Court of India, he would not be in a position to request this Court to reduce the compensation. Nonetheless, he would submit that considering the documentary evidence of income of the deceased from exhibit 50 to 52, more particularly Form 16A issued by the last employer of the deceased, i.e., Click Informatics Private Limited, would suggest that a payment of Rs.45,000/- was drawn towards professional charges and not salary and even 10% TDS was deducted out of such payment. So, according to his submission, even if this Court would like to consider the income of the deceased, as requested by the claimants, then also considering the documentary evidence on record, at best, income of the deceased would be 40,500/- as income tax requires to be deducted. 11.3 He would further submit that out of the 4 claimants, the father - claimant no.1 was serving and drawing salary/ income as coming out of his oral evidence at exhibit 46 and claimant No.4, who happens to be sister of deceased, would have dependency upon her father i.e., claimant no.1. 11.3 He would further submit that out of the 4 claimants, the father - claimant no.1 was serving and drawing salary/ income as coming out of his oral evidence at exhibit 46 and claimant No.4, who happens to be sister of deceased, would have dependency upon her father i.e., claimant no.1. Then no error was committed by the Tribunal while deducting 1/3 personal expense of the deceased. According to his submission, as such, no error has been committed by the Tribunal while awarding compensation. 12. Heard learned advocates appearing for the respective parties. No other and further submissions are being made by the respective advocates of the parties. We have gone through the record and proceedings of the case. POINT OF DETERMINATION 13. The following points of determination are considered which are as under:- 1. Whether in the facts and circumstances of the case, the Tribunal has committed any error in holding the deceased contributory negligent to the extent of 30% for causing accident? 2. Whether in the facts and circumstances of the case, the Tribunal has committed any error in not considering the appropriate income of deceased by awarding compensation? 3. Whether in the facts and circumstances of the case, the Tribunal has committed any error in law by awarding a lesser amount under the conventional head? APPRECIATION OF EVIDENCE AND FINDINGS 14. To appreciate the controversy involved in the matter, the facts, which can be gathered from evidence on record, clearly suggest that the car was driven by deceased on the main highway from Sarkhej to Gandhinagar and the truck driver entered into the main highway by crossing the intersection and dashed with the car on its driver side. The eyewitness, Jitendrabhai, in his examination at Exhibit 83, would indicate that the car was driven by the deceased at a moderate speed, and its headlights were on and suddenly, a truck came from the right-hand side of the car, which dashed with the driver side of the car, resulting in an accident. An FIR and chargesheet came to be filed against the driver of the truck, showing prima facie negligence on his part. Moreover, the truck driver, though served, has chosen not to appear before the Tribunal, neither file any written statement nor examined by the Insurance Company to prove contributory negligence of the deceased. 15. An FIR and chargesheet came to be filed against the driver of the truck, showing prima facie negligence on his part. Moreover, the truck driver, though served, has chosen not to appear before the Tribunal, neither file any written statement nor examined by the Insurance Company to prove contributory negligence of the deceased. 15. If we consider regulations No.8 and 9 of the Road Regulations, 1989, it would clearly indicate that if the driver of the truck could have taken the slightest care while crossing the intersection and then entered the main road by giving way to main traffic on highway, then the collision between the truck and the car could have been easily avoided. The relevant regulation No.8 and 9 reads as:- 8. Caution at road junction The driver of a motor vehicle shall slow down when approaching a road intersection, a road junction, pedestrian crossing or a road corner, and shall not enter any such intersection, junction or crossing until he has become aware that he may do so without endangering the safety of persons thereon. 9. Giving way to traffic at road junction The driver of a motor vehicle shall, on entering a road intersection, at which traffic is not being regulated, if the road entered is a main road designated as such, give way to the vehicles proceeding along that road, and in any other case give way to all traffic approaching the intersection on his right hand. 16. At this stage, it is apposite to refer the decision of Hon’ble Supreme Court of India in the case of Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak, reported in 2002 (6) SCC 455 , Hon’ble Supreme Court of India while referring to a decision of the High Court of Australia in Astley v. Austrust Ltd.,reported in 1999 (73) ALJR 403, went on to hold that: - "... where, by his negligence, if 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 the very same judgment, Apex Court also referred to and approved the view taken in Swadling v. Cooper, 1931 AC 1, as below: - "Mere failure to avoid the collision by taking some extra ordinary precaution, does not in itself constitute negligence." (emphasis supplied) 17. So keeping in mind the said regulation, the law laid down by the Hon’ble Supreme Court of India and the facts of the case on hand, and also after going through the panchnama, this Court is of the opinion that the Tribunal has committed an error in holding the deceased contributory negligent to the extent of 30% for causing the accident. It is a well-settled legal position of law that if the driver of the offending vehicle was not appearing nor examined before the Tribunal, then an adverse inference requires to be drawn against him whereby he can be held solely negligent for causing the accident. In the present case, also, the driver of the truck remained absent before the Tribunal, so the question of his oral evidence would not arise at all, which is otherwise not available on record. 18. So, considering the matters from every angle and in the absence of any oral evidence of the truck driver, we are unable to agree with the view of the Tribunal holding the deceased contributory negligent to the extent of 30%. Rather, we are of the view that it is a case of sole negligence of the truck driver, who can be blamed for violating road regulation, 1989 thereby caused the accident. 19. Thus, in view of the aforesaid observation and discussion, we are of the opinion that the driver of the truck was solely negligent for causing the accident, and to that extent, the impugned judgment and award holding the deceased 30% negligent for causing the accident is hereby set aside. 20. 19. Thus, in view of the aforesaid observation and discussion, we are of the opinion that the driver of the truck was solely negligent for causing the accident, and to that extent, the impugned judgment and award holding the deceased 30% negligent for causing the accident is hereby set aside. 20. So far as granting compensation to the claimants is concerned, it appears from the record itself that the deceased was used to receive an income of Rs.45,000/- per month less tax from Click Informatics Private Limited. This fact was coming forth from the evidence of Ravibhai Ramlingam Mudaliyar at Exhibit 73 confirming from form 16A issued by Click Informatic Private Limited. The Tribunal considered the aforesaid income in its impugned judgment and still considered only Rs.30,000/- basic pay as the income of the deceased while calculating compensation. 21. According to this Court, it is a clear error on the part of the Tribunal not to consider other income so derived by the deceased from Click Informatic Private Limited. It is apposite to place reliance upon the decision of Hon’ble Supreme Court of India in a case of National Insurance Company Ltd. V/s Indira Srivastava, reported in 2008 (2) SCC 763 , wherein held as under:- “[17] The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted. [19] If the dictionary meaning of the word 'income' is taken to its logical conclusion, it should include those benefits, either in terms of money or otherwise, which are taken into consideration for the purpose of payment of income-tax or profession tax although some elements thereof may or may not be taxable or would have been otherwise taxable but for the exemption conferred thereupon under the statute.” 22. According to this Court, the claimants have successfully proved by leading oral and documentary evidence, which is sufficient in a proceedings like the present one, which is to be adjudged on principles of preponderance of probability, whereby we are inclined to hold that the deceased was used to earn Rs.45,000/- per month less income tax at the time of the accident. 23. It is a well-settled position that income, which was received by the deceased was subject to the payment of income tax. Income so derived by the claimant requires to be sliced down to that extent by deducting income tax so deducted from his income. So considering his form 16A on record, wherein 10% reduction out of 45,000 is shown ? towards TDS, then considering the aforesaid evidence and Mr. Bhalodi, learned advocate for the claimants, would also agree for such deduction towards tax, the income of the deceased requires to be considered at Rs.40,500/- p.m. instead of Rs.30,000/- p.m.. 24. Likewise, there were 4 claimants shown as dependents in the claim petition, but out of which, claimant No.1 – father of the deceased was serving and having his income and claimant no.4 happens to be sister of the deceased, who would have been dependent upon her father - Claimant no.1 then considering these peculiar facts and circumstances, the Tribunal has correctly deducted 1/3 personal expense of the deceased. 25. Moreover considering the status of the deceased - Darshinbhai as shown in Form 16A, i.e., professional, we deem it appropriate to consider 40% future prospective rise of income of the deceased. 26. Lastly, in view of the recent past pronouncement of the Hon’ble Supreme Court of India of Pranay Shetty (supra), Nanu Ram (supra) & Satinder Kaur (supra), each claimant (except sister) would be entitled to receive the amount of consortium and so also amount towards loss of estate and funeral expenses that the claimants would be entitled to receive. 27. Thus, in view of above stated discussion and finding, claimants are entitled to the following compensation as under:- Sr.No. Nature of Income Amount 1. Actual Loss Of Dependency [(Rs.45,000/-(monthly income)- 4,500 (income tax) = Rs.40,500 + 40%(Future rise of income) = 56,700 –18,999 (1/3 deduction) = Rs.37,800 x 12 x17)] Rs.77,11,200/- 2. Consortium Rs.1,45,200/- 3. Funeral Expenses Rs.18,150/- 4. Loss of Estate Rs.18,150/- 5. Total Compensation Rs.78,92,700/- 6. Actual Loss Of Dependency [(Rs.45,000/-(monthly income)- 4,500 (income tax) = Rs.40,500 + 40%(Future rise of income) = 56,700 –18,999 (1/3 deduction) = Rs.37,800 x 12 x17)] Rs.77,11,200/- 2. Consortium Rs.1,45,200/- 3. Funeral Expenses Rs.18,150/- 4. Loss of Estate Rs.18,150/- 5. Total Compensation Rs.78,92,700/- 6. Deducting compensation already awarded by the tribunal Rs.57,29,500/- 7 Additional compensation Rs.21,63,200/- CONCLUSION 28. In view of the above discussion, we hold that the deceased had sustained injuries and died due to rash and negligent driving on the part of the driver of the truck, who was solely responsible for causing the accident. The deceased is not found contributory negligent for causing the accident. 28.1 In view of above, the claimants are entitled to a total compensation of Rs.78,92,700/- and having received Rs.57,29,500/- by way of impugned award. Now, claimants are entitled to receive an additional compensation of Rs.21,63,200/-, which will carry 7% interest from the date of claim petition till realization jointly and severally from the original opponents. 28.2 Once, the Insurance Company will deposit the additional compensation before the Tribunal, the Tribunal shall disburse 50% of such compensation through RTGS/NEFT in favor of original claimant Nos.1 to 3 in the following ratio on appropriate verification and balance 50% amount shall be invested in non-cumulative FDRs in any nationalized Bank of their choice of claimants for a period of 3 years on usual terms. The claimants are entitled to receive periodical interest accrued thereon. 28.3 Considering the facts and circumstance of the present case, this Court would like to refix the ratio of entitlement to get compensation among the claimants as under:- 28.3.1 Claimant No.3, the widow of the deceased, is entitled to receive 70% of additional compensation. Claimant nos.1 and 2, being parents of the deceased, are entitled to receive 15% each of additional compensation. 28.4 Thus, in view of the above, the appeal filed by the claimants is partly allowed to the aforesaid extent, whereas the appeal filed by the Insurance Company is hereby dismissed, albeit, no order as to costs. Record and Proceeding of the case be sent back to the tribunal forthwith.