JUDGMENT : (J.C. Doshi, J.) 1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the appellants – original claimants being aggrieved and dissatisfied with the judgment and award dated 12.12.2011 passed by the Motor Accident Claims Tribunal, Sabarkanta at Himmatnagar in Motor Accident Claim Petition No.263 of 2002. 2. Brief facts of the case are as under: 2.1 The brief fact of the present appeal is such that on 12.01.2002, deceased Afjalkhan was going towards Chikhli from Navsari driving truck No.GJ-1-X-4118 and when he was passing on National Highway No.8, at about 5.00 am, opponent no.1 driver of Truck No.HR-28-E-3650 came in wrong side, driving his truck in rash and negligent manner and dashed with the truck of deceased, as a result of which, Afjalkhan sustained fatal injuries and died on the spot. 2.2 FIR of incident was registered before concerned Police Station. 2.3. The claimant filed claim petition under section 166 of MV Act being MACP No.263 of 2002 claiming compensation of Rs.10,00,000/- along with interest jointly and severally from the opponents. 2.4. After appreciating evidence on record, learned Tribunal was pleased to pass judgment and award in tune of Rs.2,61,100/- with 9% interest from the date of claim petition till realization. 2.5. Being aggrieved and dissatisfied with impugned judgment and award dated 01.07.2008, the original claimant has filed present appeal. 3. Learned advocate for the appellants - claimants has submitted that the learned Tribunal committed serious error in assessing contributory negligence of deceased Afjalkhan who was driving one of the vehicle involved in the road accident. He would further submit that learned Tribunal has wrongly apportioned 30% negligence to the deceased in causing road accident despite fact that driver of other vehicle did not enter into witness box to divulge correct scene of road accident. Finding fault with the impugned judgment and award assessing 30% negligence of deceased, it is argued that learned Tribunal has noted that driver of other vehicle involved in the accident came on wrong side to the truck driven by deceased, yet learned Tribunal has fastened negligence of deceased upto 30 % on the ground that both the vehicle are of equal nature and accident took place on head and collusion manner, as such has erred. It is submitted that principle of res-ipsa liquotor would apply as none of the eye witness to the road accident entered into witness box to unfurl correct fact of road accident. It is submitted that panchnama drawn post accident has been referred and perused by the learned Tribunal to draw finding that truck of other vehicle came on wrong side and dashed with the truck driven by deceased, yet for no reasons, deceased is held 30% negligence and therefore, finding of attributing self negligence to the extent of 30% of deceased Afjzalkhan deserves to be quashed and set aside. Alternatively, it is submitted that if this Court comes to conclusion that learned Tribunal has rightly assessed that deceased Afjalkhan was 30% negligent, owner of the truck driven by deceased had purchased premium of paid driver and in view of judgment of Full Bench of this Court in the case of Valiben Laxmanbhai Thakore v/s. Kandla Dock Labour Board [ 2022 (1) GLR 440 ], owner and insurer of truck driven by deceased would be liable to pay compensation equal to negligence of deceased Afjalkhan. 3.1. Secondly, it is submitted that deceased was driving truck at the relevant time. He was driver of heavy goods vehicle. Learned Tribunal did not consider this aspect and taken meager amount of Rs.2500/- as income per month of deceased. It is submitted that deceased Afzalkhan was skilled driver and riding heavy goods vehicle at the relevant time and in view judgment of Hon'ble Apex Court in the case of Minu Rout v/s. Satya Pradyumna Mohapatra and Ors. [ (2013) 10 SCC 695 ], to calculate dependency loss income has to be taken as Rs.6000/- per month. Learned advocate for the appellant also submitted that learned Tribunal has taken conservative view to grant compensation under other heads and as such compensation granted by learned Tribunal is on lower side and therefore, prayed that compensation be enhanced by allowing this appeal. 4. On the other hand, learned advocate Ms. Ami Bhatt for respondent no.3 - Oriental Insurance Company Ltd. supported impugned judgment so far as finding of learned Tribunal with regard to assessing contributory negligence of deceased in causing road accident. 4. On the other hand, learned advocate Ms. Ami Bhatt for respondent no.3 - Oriental Insurance Company Ltd. supported impugned judgment so far as finding of learned Tribunal with regard to assessing contributory negligence of deceased in causing road accident. She would further submit that looking to the facts on record, it is is undeniable aspect that accident took place between two trucks been of same nature in head on collusion manner on the highway and keeping such aspect in mind, learned Tribunal has not committed any error in apportioning liability in the ratio of 70% : 30% between truck driver and deceased and therefore, she submits not to disturb finding of learned Tribunal in regard to negligence of drivers of trucks involved in road accident. So far as income aspect is concerned, it is submitted that learned Tribunal has taken Rs.2500/- per month to calculate dependency loss in absence of any record / evidence to establish income of deceased. It is submitted that accident took place in January, 2002 and rate of minimum wages at the relevant time was near that figure and therefore, learned Tribunal has rightly calculated loss of dependency. Thus, it is submitted that there is no error on the part of the learned Tribunal to calculate loss of dependency and for rest of the arguments, she submits to pass necessary order. 5. Respondent no.5 - United India Insurance Co. Ltd. is served, but did not chose to appear to contest the appeal. 6. I have heard learned advocates for both the sides and gone through Record and Proceedings minutely. Needless to state that undeniable aspect emerging from record that accident took place on 12.01.2002 when deceased Afjzalkhan was driving Truck No.GJ-1-X-4118 towards Chikhli from Navsari, he met to road accident in wee hours. Truck No.HR-38-E-3650 came from opposite side and dashed with truck driven by deceased, resulting into fatal injuries and death due to injuries. The claimants are heirs of deceased Afzalkhan. It is equally undeniable aspect that driver of Truck No.HR-38-E-3650 as well as owner though served did not file Written Statement to deny assertion of the facts made by the claimants nor either of them entered into witness box to unfurl real scene of incident. The claimants are heirs of deceased Afzalkhan. It is equally undeniable aspect that driver of Truck No.HR-38-E-3650 as well as owner though served did not file Written Statement to deny assertion of the facts made by the claimants nor either of them entered into witness box to unfurl real scene of incident. Insurance Company which has been served, contested the petition but did not intend to secure presence of driver of Truck No.HR-38-E-3650 for deposition nor has examined any eye witness. The fact which could be discern that learned Tribunal has been kept away without best evidence of accident. In this circumstances, what could be discernible from Panchanama drawn subsequent to road accident is important to find out position of both the vehicles post road accident and further to find out whether deceased was negligent in causing road accident. It is a case where in fitness of things, principle of res ipsa liquotor would apply. 7. At this stage, let me refer finding of learned Tribunal with regard to assessing contributory negligence of deceased Afzalkhan. Para 16 of the impugned judgment is important, it reads as under :- "(16) Perused the oral as well as documentary evidence. It appears from the FIR at Exh.54 that front portion of both the involved trucks dashed with each other, but at the same time it transpires that the place of accident in on the eastern side, meaning thereby upto some extent the deceased was driving his cruck in his correct side, but the opponent No.1 had driven his truck upto some extent in wrong side, therefore, though the charge-sheet is filed against opponent No.1, and as there is no any eye witness it cannot be said that the deceased or opponent No.1 were negligent equally or solely, but considering the facts of the panchnama of place of accident, it can safely be said that opponent No.1-driver of the involved truck No.HR-38-E- 3650 was negligent upto 70% and deceased Afjalkhan @ Kadarkhan was negligent upto 30%. Further, it is also proved by producing the P.M. Note and inquest panchnama of deceased on record that, in the said accident deceased Afjalkhan @ Kadarkhan had sustained fatal injuries and had died. Hence, I answer the issue no.1 accordingly." 8. Further, it is also proved by producing the P.M. Note and inquest panchnama of deceased on record that, in the said accident deceased Afjalkhan @ Kadarkhan had sustained fatal injuries and had died. Hence, I answer the issue no.1 accordingly." 8. What could be discernible that while assessing 30% negligence of deceased Afjalkhan, learned Tribunal has assessed that opponent no.1 has driven his truck on wrong side to some extent. However there is no finding that deceased Afjzalkhan was driving truck upon track / road where he ought not have driven. Further while determining negligence in road accident in ratio of 70% : 30%, no specific reasons are given by the learned Tribunal that why deceased should be held 30% negligence in causing road accident. Perhaps, learned Tribunal has drawn negligence ratio to the tune of 70% : 30% on the aspect that accident took place between two vehicles of equal nature and in head on collusion manner. As such, the finding is erroneous. Panchnama speaks that driver of other vehicle came on wrong side and dashed with the truck driven by the deceased. Obviously, it means that deceased was driving his truck on correct side. Learned Tribunal while fastening 30% liability upon deceased in causing road accident did not notice that driver of other truck had not enter into witness box and erred in not drawing adverse inference. At this stage, judgment of this Court in the case of United India Insurance Company Ltd. v/s. Yakum Alibhai Molvi [2024 (0) GUJHC 59179] is required to be referred. In para 9 and 10, it is held as under :- "9. What further appears that driver of the luxury bus did not enter into witness box to explain the method and manner in which the accident took place who having specialized knowledge certainly permit the tribunal to draw adverse inference against him. In Iswar Bhai C. Patel & Bachu Bhai Patel vs Harihar Behera & Anr [ 1999 (3) SCC 457 ], the Supreme Court has held in paragraph 17 as under: “17. Admittedly defendant No.1 had an account in the Central Bank of India Limited, Sambalpur Branch which his father, namely, respondent No.2, was authorised to operate. It is also an admitted fact that it was from this account that the amount was advanced to the appellant by respondent No.2. Admittedly defendant No.1 had an account in the Central Bank of India Limited, Sambalpur Branch which his father, namely, respondent No.2, was authorised to operate. It is also an admitted fact that it was from this account that the amount was advanced to the appellant by respondent No.2. It has been given out in the statement of respondent No.2 that when the appellant had approached him for a loan of Rs.7,000/-, he had explicitly told him that he had no money to lend whereupon the appellant had himself suggested to advance the loan from the account of respondent No.1 and it was on his suggestion that the respondent No.2 issued the cheque to the appellant which the appellant, admittedly, encashed. This fact has not been controverted by the appellant who did not enter the witness box to make a statement on oath denying the statement of defendant (respondent) No.2 that it was at his instance that respondent No.2 had advanced the amount of Rs. 7,000/- to the appellant by issuing a cheque on the account of defendant (respondent) No.1. Having not entered into the witness box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of principles contained in illustration (g) of Section 114 of the Evidence Act.” 10. This principle has also been reiterated in Vimla Devi vs. The National Insurance Company Limited [ 2019 SCC 186 ]. “20.6 Fifth, so far as the Insurance Company is concerned, they also did not examine any witness to rebut the appellants’ evidence. The Insurance Company could have adduced evidence by examining the driver of the offending Truck as their witness but it was not done.” 9. Since in the present case, on perusing panchanama and further facts that driver of other vehicle did not enter into witness box to rebut evidence filed by the claimants as well as Insurance Company did not lead evidence to counter evidence of claimants on the issue of negligence, I believe that learned Tribunal has committed serious error in attributing 30% negligence to the deceased. Perusing cross examination of claimant (Exh.74) it was suggested that deceased Afjzalkhan - husband of claimant no.1 was driving his truck at moderate speed and driver of other vehicle was driving truck on excessive speed and dashed with the truck driven by deceased. The suggestion was accepted by the claimant. Perusing cross examination of claimant (Exh.74) it was suggested that deceased Afjzalkhan - husband of claimant no.1 was driving his truck at moderate speed and driver of other vehicle was driving truck on excessive speed and dashed with the truck driven by deceased. The suggestion was accepted by the claimant. In further cross examination done by learned advocate for respondent no.3, no questions are put in cross examination to counter / rebut evidence of claimant to contend that deceased was negligent in causing road accident. According to this Court, learned Tribunal erred in fastening liability upon deceased for attributing negligence in causing road accident. Driver of other vehicle is hereby held 100% negligent in causing road accident. 10. Next question arises, whether learned Tribunal was right in taking income of the deceased to Rs.2500/- to calculate dependency loss on the basis of such amount and compensation under different heads being pecuniary and non pecuniary and in all compensation of Rs.3,73,000/- 11. It is undeniable aspect that on the date of accident, deceased was driving Truck No.GJ-1-X-4118. Driving license of the deceased is produced at Mark 58/1. It indicates that he was licensed to drive MV, HGV, HPV for period commencing from 20.08.1990 to 30.05.2008. This fact establish that on the date of accident, deceased was authorized to drive heavy goods vehicle and also possessed skill to drive such vehicle. He was heal and hearty. Driving license noted date of birth of deceased as 31.05.1968 and accident took place on 12.01.2002. Thus, on the date of accident, deceased was 33 years. In the case of Minu Roat (supra), the Hon'ble Apex Court, for the accident which took place in the year 2004 taking judicial notice that post of driver is skilled job, adopted income of driver as Rs.6000/-. In para 20, the Hon'ble Apex Court has held as under :- "20. The Tribunal ought to have taken the salary of the deceased driver at Rs.6,000/- by taking judicial notice of the fact that the post of a driver is a skilled job. In para 20, the Hon'ble Apex Court has held as under :- "20. The Tribunal ought to have taken the salary of the deceased driver at Rs.6,000/- by taking judicial notice of the fact that the post of a driver is a skilled job. Though the claim of the appellants is Rs.5000/- as monthly salary of the deceased for the purpose of determining the loss of dependency, the actual entitlement of the salary of the deceased should have been taken at Rs.6000/- per month by the Tribunal for awarding just and reasonable compensation, which is the statutory duty of the Tribunal and the Appellate Court. In view of the law laid down by this Court in Santosh Devi vs. National Insurance Company Ltd. & Ors.; 30% of future prospects of the deceased should be added to the monthly income. If 30% is added to the monthly income, it would amount to Rs.7,800/- p.m. From the same, 1/3rd should be deducted towards the personal expenses of the deceased, then the remaining amount would come to Rs.5,200/- per month. The same is multiplied by 12 amounting to Rs.62,400/- which would be the multiplicand. The same must be multiplied by 16 multiplier as the Tribunal has taken the age of the deceased at 35 as mentioned in the post mortem report, which is produced as Exh.5. According to the decision of this Court in Sarla Verma vs. Delhi Transport Corporation, the multiplier of 16 taken by the Tribunal for computation of loss of dependency is correct. If the 16 multiplier is applied to the multiplicand of Rs.62,400/-, it comes to Rs.9,98,400/- which amount is awarded towards the loss of dependency of the appellants." 12. In view of above, in the present case, learned Tribunal erred in taking Rs.2500/- as income of deceased. Looking to the facts of the case, this Court takes income of deceased as Rs.5000/- per month to calculate dependency loss. Age of the deceased was 33 years and since having no permanent source of income, in view of judgment of Hon'ble Apex Court in the case of National Insurance Company Ltd. v/s. Pranay Sethi [ 2017 (16) SCC 680 ], rise of 40% is required to be given for calculating loss of future prospects. Dependents are six in number, therefore, one fourth of income is to be deducted towards personal expenses. Dependents are six in number, therefore, one fourth of income is to be deducted towards personal expenses. Deceased was 33 years, so multiplier of 16 is required to be applied and also under different heads, compensation is required to be rectified in view of judgment of Hon'ble Apex Court in the case of Pranay Sethi (surpa). Award for loss of consortium is also required to be enhanced. 13. Therefore, total compensation would be as under, which the claimants/s is/are entitled to get. Particulars Amount (Rs.) Future dependency Loss Rs.5000/- per month x 12 + 40% prospective rise= Rs.84,000/- p.a., 1/4th to be deducted towards personal expenses = Rs.63,000/- p.a. and applying 16 multiplier, total amount would be Rs.10,08,000/- 10,08,000/- Loss of estate 18,150/- Loss of consortium Claimant no.1 being widow (spousal consortium = Rs.40,000/- Claimant no.2 and 3 being parents (parental consortium) = Rs.80,000/- Claimant nos.4, 5 and 6 being minor children of deceased (filal consortium) = Rs.1,20,000/- 2,40,000/- Funeral expense 18,150/- Total 12,84,300/- Less: compensation already awarded 2,61,100/- Additional amount which is awarded 10,23,200/- 14. Therefore, I hold that the claimants are entitled to get the enhanced compensation of Rs.10,23,200/- with 9% p.a. interest from the date of filing the claim petition till its realisation, which would meet the ends of justice. Rest of the direction(s) of the Tribunal remain same. 15. For the reasons recorded above, the following order is passed. 15.1 The present appeal is partly allowed. 15.2. Claim petition against opponent nos.4 and 5 stands dismissed. 15.3 The Oriental Insurance Company Ltd. is directed to deposit the enhanced amount with interest as stated herein above within a period of six weeks from the date of receipt of this order. 15.4 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, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure. 15.5 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law. 15.6 Record and proceedings be sent back to the concerned Tribunal, forthwith.