JUDGMENT :

1. The present appeal is filed at the instance of the Insurance Company under Section 173 of the Motor Vehicles Act, 1988 (for short “the Act”), being aggrieved and dissatisfied with the judgment and award dated 05.08.2016, passed by the learned Motor Accident Claims Tribunal (Aux), Vadodara in MACP No. 1171 of 2007.

2. By the said impugned judgment and award the Tribunal has partly allowed the claim petition preferred by the original claimants under Section 166 of the Act, 1988 holding them entitled to recover a sum of Rs. 8,57,120/- with interest at the rate of 9% from the date of filing of the claim petition till its actual realisation with proportionate cost, from the original opponents jointly and severally. Hence, the present appeal at the instance of the Insurance Company, challenging the impugned judgment and award on the count of negligence, quantum of compensation being determined on higher side and the liability of Insurance company being erroneously fixed.

3. Considering the ground raised in the appeal memo and the submissions made by learned advocate-appellant Insurance company, this Court vide order dated 23.11.2016, had admitted the appeal. In the interim application for stay preferred by the applicant-appellant Insurance Company, this Court had on condition of deposit of entire award amount with the concerned Tribunal, had stayed the impugned judgment and award pending the appeal. This Court had issued further directions to release 30% of such deposited awarded amount in favour of the original claimants subject to due verification and the remaining 70% amount was directed to be invested in a fixed deposit scheme in any nationalised bank. The interest to be accrued on such fixed deposit were permitted to be paid to the claimants. The fixed deposit receipts were made subject to outcome of the present appeal.

4. Learned advocate Mr. Palak Thakkar appearing for the appellant Insurance company has assailed the impugned judgment and award by submitting that the Tribunal committed grave error in not entertaining the plea of contributory negligence raised by the Insurance Company. The attention of this Court was invited to the findings and reasons assigned by the Tribunal. It was submitted that the Tribunal failed to appreciate the fact that admittedly it was a case of head on collision. He has further submitted that even though driver of the tempo was not examined, however, considering the panchnama of the place of accident it can be inferred that the deceased had also contributed to the occurrence of the accident. Considering the fact that it was head on collision, the Tribunal ought to have held the deceased equally negligent towards the occurrence of accident.

4.1 On the quantum of compensation, learned advocate had submitted that the Tribunal has fixed the notional income of the deceased as Rs. 4000/-. The attention of this Court was invited to the fact that the deceased was earning his livelihood by doing masonry work and in absence of any documentary proof of income being produced on record in the peculiar facts of the case, the Tribunal ought to have followed the standard rates of minimum wages notified by the State Government for the purpose of determination of income of the deceased.

4.2 Learned advocate had invited my attention to the standard rates of minimum wages prevailing during the time of accident between i.e 1^st April 2007 to 30^th September, 2007 which in case of skilled workman was Rs. 2,800/-. He has further submitted that considering the subsequent law laid down by the Hon’ble Supreme Court in the case of National Insurance Company Vs. Pranay Sethi reported in (2017) 16 SCC 680, the prospective rise of the income is required to be determined by giving addition of 25% rise to the aforesaid income.

4.3 Considering the fact that there were three dependents in the family of the deceased including the widow and their two children, the Tribunal has rightly applied the deduction of 1/3rd towards pers