JUDGMENT : 1. This appeal has been filed under section 173 of the Motor Vehicles Act, 1988, challenging the award dated 04.03.2015 passed by the learned Motor Accident Claims Tribunal, Jashpur, District-Jashpur, Chhattisgarh in Motor Accident Claim No.31/2014 (“Kuldeep Ekka & Others vs. Kailash Yadav & Others”). 2. Brief facts of the case are that on 02.05.2014, 24-year-old Raili Ekka along with his friend was going to Charaidand on a motorcycle at that time respondent No. 8 Baleshwar Ram Yadav was driving a pick-up bearing registration No. JH-07-C-8696 (offending vehicle) in a rash and negligent manner and dashed the motorcycle of Raili Ekka due to which he sustained grievous injuries and died. His legal heirs, who are respondents No. 1 to 6, filed a claim application under section 166 of the Motor Vehicles Act, 1988 against the driver (Baleshwar Ram Yadav) of the offending vehicle, registered owner/respondent No. 7 (Kailash Yadav) and the appellant (insurance company) on which after due proceedings, the Tribunal passed an award of Rs. 45,92,880/- in favour of the legal heirs of the deceased. The appellant was found to be the insurer of the offending vehicle and was held liable to pay the aforesaid compensation amount. 3. The appellant/insurance company has filed this appeal challenging the award passed against it. Learned counsel for the appellant contends that the impugned award is on the higher side which needs to be reduced suitably. He further submits that the tribunal has erred in awarding an amount of Rs. 2,75,000/- on the other conventional heads whereas as per the case of National Insurance Company Limited v. Pranay Sethi & Ors., reported in AIR 2017 SC 5157 , it should not be more than Rs. 70,000/-. He also submits that it is clear from the cross-examination of the eye witness Sunil Panna (AW-2) that at the time of the accident, the deceased was driving the motorcycle in a breach of policy conditions as the deceased was driving the motorcycle in which two persons namely Sanju Ekka and Sunil Panna were also sitting on the back of the driver of the motorcycle whereas a motorcycle has only two (including driver) sitting capacity. He also submits that it is clear from the postmortem report (Ex.A-2) of the deceased that at the time of the accident, the deceased was in a drunken condition, therefore, he had driven the motorcycle negligently under the influence of of alcohol, due to which the said accident occurred. Therefore, the appeal may be allowed and set aside the excessive quantum of the award and apply the principle of contributory negligence. 4. Learned counsel for respondents supported the impugned award and opposed the submissions made by the counsel for the appellant. 5. I have heard learned counsel appearing for the parties and perused the record of the Tribunal including award impugned. 6. So far as the quantum of the award is concerned, it is evident that at the time of the accident, the deceased was unmarried, aged about 24 years was a Government employee under the Indian Army and was drawing a monthly salary of Rs. 26,653/-. There are a total number of claimants are 6 who are the parents and siblings of the deceased and as per the matter of Magma General Insurance Co. Ltd. Vs. Nanu, reported in AIR Online 2018 SC 189 on the head of love and affection Rs. 40,000/- for each claimant should be awarded which comes to Rs. 2,40,000/- and on the head of loss of estate Rs. 15,000/- & also on the head of funeral expenses Rs. 15,000/- should be awarded. Thus, the total compensation on conventional heads comes to Rs. 2,70,000/-, therefore, the contention of the learned counsel for the appellant to the point that the Tribunal has awarded a higher amount of Rs. 2,75,000/- on other conventional heads, does not appear to be on the higher side. 7. So far as the plea of counsel for the appellant on the point of contributory negligence is concerned, from the perusal of the record, it would reveal that except for the pleading made in the written statement, the Insurance Company had not led any evidence before the learned Claims Tribunal. 8. The Hon'ble Supreme Court while dealing with the issue of contributory negligence in the matter of Minu Rout & Anr. v. Satya Pradyumna Mohapatra & Ors., 2013 AIR SCW 5375 dealt with the plea of contributory negligence taken by Insurance Company where neither the driver nor any independent witness was examined to prove the allegation of contributory negligence. 8. The Hon'ble Supreme Court while dealing with the issue of contributory negligence in the matter of Minu Rout & Anr. v. Satya Pradyumna Mohapatra & Ors., 2013 AIR SCW 5375 dealt with the plea of contributory negligence taken by Insurance Company where neither the driver nor any independent witness was examined to prove the allegation of contributory negligence. The Supreme Court, while setting aside the finding of contributory negligence, held as under: “12. ……… 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 IPC 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 PW.2 and PW3 in their cross-examination and placed reliance on them to record the finding on issue No. 1. 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.” 9. In the matter of Jiju Kuruvila and others v. Kunjujamma Mohan and Others : (2013) 9 SCC 166 , the Hon’ble Supreme Court has held as under:- “20.5 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 a number of factors like the 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 was caused, but in the 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.” 10. Similarly, in the matter of Mohammed Siddique and Another v. National Insurance Company Limited and Others : (2020) 3 SCC 57 , Hon’ble the Supreme Court has held in para 13 as under: “13. Therefore, in the absence of any evidence to show that the wrongful act on the part of the deceased victim contributed either to the accident or to the nature of the injuries sustained, the victim could not have been held guilty of contributory negligence. Hence, the reduction of 10% towards contributory negligence, is clearly unjustified and the same has to be set aside.” 11. In the light of the aforementioned law laid down in the matters of Minu Rout (supra), Jiju Kuruvila (supra) and Mohammed Siddique (supra), if the facts and circumstances of the present case is considered, it is evident that though the general plea of contributory negligence was taken by the Insurance Company in its written statement, but the Insurance Company has not examined either driver of the offending vehicle in the witness box or not made any effort to bring any independent witness to establish the plea of contributory negligence on the part of the deceased. According to the evidence available on record, the motorcycle which was driven by the deceased with two pillion riders was more than its capacity and during the postmortem, the odour of alcohol from the stomach of the deceased would have to be assumed to determine that the deceased was in drunken condition at the time of the accident and hence he had driven the motorcycle in rash and negligent manner due to which the said the accident had taken place but an assumption can never take the place of evidence. The argument of contributory negligence are based on only assumption and the learned Claims Tribunal rightly not considered the plea of contributory negligence and it is hereby affirmed. 12. In the above situation, this court finds that the arguments raised by the appellant/insurance company in the appeal are not acceptable. In the light of the facts and evidence available on record, the conclusion of the tribunal is found just and proper, in which no interference is required. Thus, the appeal of the appellant/insurance company is liable to be and is hereby dismissed.