THE GAUHATI HIGH COURT AT GUWAHATI (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) Principal Seat at Guwahati MAC Appeal No. 372/2016. M/S HDFC ERGO General Insurance Company Limited, Office at 6th floor, Leela Business Park, Andheri Kurla Road, Andheri (East) Mumbai – 400059, Branch office at Bhangagarh, Guwahati. …… Appellant. -Versus- 1. Smti. Korobi Mazumdar, W/o Late Bhusan Mazumdar, Vill. - Chandmari, Ward No. 19, Mouza – Mahabhairab, Dist. – Sonitpur, Assam. 2. Smti. Ria Mazumdar, D/o Late Bhusan Mazumdar, Vill. - Chandmari, Ward No. 19, Mouza – Mahabhairab, Dist. – Sonitpur, Assam. 3. Smti. Jamini Mazumdar, W/o Sri Kanak Mazumdar, Vill. - Chandmari, Ward No. 19, Mouza – Mahabhairab, Dist. – Sonitpur, Assam. …… Respondents. GAHC010031992016 BEFORE HON’BLE MR. JUSTICE ROBIN PHUKAN Advocate for the appellant :- Mr. K.K. Bhatta. Advocate for the respondents :- Mr. P. Sundi. Date of hearing :- 04.06.2026. Date of which judgment is reserved :- 04.06.2026. Date of pronouncement of judgment :- 08.06.2026. Whether the pronouncement if of the :- N/A operative part of the judgment? Whether the full judgment has been :- Yes pronounced? JUDGEMENT & ORDER (CAV) Heard Mr. K.K. Bhatta, learned counsel for the appellant and Mr. P. Sundi, learned counsel for the respondents. 2. In this appeal, under Section 173 of the MV Act, the appellant has put to challenge the correctness or otherwise of the judgment and award dated 22.07.2016, passed by the learned Member, MACT, Sonitpur at Tezpur (Tribunal hereinafter), in MAC Case No. 178/2012. 3. It is to be noted here that vide impugned judgment and award dated 22.07.2016, learned Tribunal had directed the appellant herein to pay a sum of Rs. 33,09,000/- along with interest @ 6% per annum from the date of filing of the claim petition till realization. Background Facts:- 4. The background facts, leading to filing of the present appeal, are adumbrated herein below:- “The deceased husband of the claimant No.1, Late Bhusan Mazumdar was a businessman and was dealer of bulk purchase and sell of betel-nut. On 05.01.2012, he was travelling in a mini Truck, TATA ACE, bearing registration No. AS-01-DD-4115, from Guwahati to Tezpur and carrying betel nut, betel leaves, coconut etc. to Tezpur in the said vehicle along with him one Gautam Borah, who was also carrying goods in the same vehicle. Then, on the way, the Truck lost its control and dashed against a tree at Chagoliahot and the said accident took place due to rash and negligent driving on the part of the driver of the Truck. In the said accident, Bhusan Mazumdar died on the spot. Then on being informed about the said accident, Tezpur Police Station had registered a case, being Tezpur P.S. Case No. 336/2012, under Section 279/338/304A of the IPC and thereafter, investigation was carried out. The deceased was a married person and he left behind his wife, the claimant No. 1, his daughter, the claimant No. 2 and his mother, the claimant No. 3. His monthly income was Rs. 15,000/- - Rs. 20,000/-. And at the time of his death, his age was 32 years. Thereafter, his wife, his daughter and his mother had filed a claim petition before the learned Motor Accident Claim Tribunal, Tezpur, upon which MAC Case No. 178/2012, was registered and notice was served to the appellant herein. Page 4 of 26 On receipt of the notice, the appellant herein entered appearance and filed written statement denying the claim of the claimants/respondents herein. Upon the pleadings of the parties, the learned Tribunal had framed following issues:- I. Whether the alleged accident took place due to rash and negligent driving by the driver of the mini Truck Tata ACE bearing Regd. No. AS- 01-DD-4115. II. Whether there was contributory negligence on the part of the deceased leading to the accident in question. III. Whether the claimant is entitled to any compensation, as prayed for and if so, from whom and to what extent. Thereafter, the learned Tribunal had examined two witnesses of the claimants and also one witness of the appellant. Thereafter, the learned Tribunal, considering the evidence adduced by the claimants/respondents herein, and by the appellant and further considering the documents so exhibited before it, allowed the claim petition, directing the appellant herein to pay compensation as stated above.” Grounds:- 5. Being aggrieved, the opposite party/appellant herein has preferred the present appeal on the following grounds:- (i) The impugned award is not payable by the appellant and is legally not sustainable in law. (ii) It was specifically stated in the written statement by the appellant and as well as the defence witness, adduced by the appellant that the deceased was traveling in the goods carrying vehicle (Tata Ace, bearing registration no. AS-01-DD-4115) as a gratuitous passenger and the policy of the vehicle does not cover the risk of a gratuitous passenger and by allowing to carry a passenger in a goods carrying vehicle; the owner-insured had committed breach of the policy condition and that because of the said reason, the award ought to have been made payable by the owner-insured and not by your humble insurer. (iii) The learned Tribunal, did not discussed evidence adduced by the opposite party/appellant that the deceased was traveling in the goods carrying vehicle (Tata Ace bearing registration no. AS-01-DD-4115) as a gratuitous passenger and the policy of the vehicle does not cover the risk of a gratuitous passenger, but fastened liability upon the insurer/appellant. (iv) The learned Tribunal completely overlooked that the claimant has not specifically stated in the claim petition regarding his specific trading in business, but simply stated in the evidence that the deceased was a dealer in bulk purchaser and seller of betel nuts. Even no specific evidence was adduced to show that in fact the deceased was traveling in the vehicle as owners of goods and as such the appellant as insurer was not liable to pay any compensation or to indemnify the owner-insured against any claim and that aspect of the matter was completely ignored by the learned Tribunal in passing the impugned award. (v) In view of the admitted position that the deceased was a gratuitous passenger in a goods vehicle along with another persons and hence the conclusion drawn by the learned Tribunal that deceased was the owner of the goods is legally untenable in law. (vi) The learned Tribunal did not discuss the evidence of opposite party/insurance company in as much as evidence of DW1 speaks itself that 2 persons were being carried in the vehicle at the time of accident and there was no proof that the deceased was traveling along with goods in the vehicle at the time of the accident and as such, the story spun out by the claimant that the deceased had hired the vehicle to carry the goods is an absolutely false claim. Hence the learned Tribunal ought to have held that the deceased was a gratuitous passenger and the liability to pay the compensation was absolutely of the owner of the vehicle and not by the insurer of the vehicle. Page 7 of 26 (vii) The learned Tribunal did not consider the evidence of DW, wherein the conditions of the policy were duly proved and it was clearly established that the insurer had no liability to pay compensation for the death and/or injury to a gratuitous passenger being carried in a goods vehicle. (viii) The impugned judgment and award was passed without considering the evidence on record and by ignoring the specific defence put in and proved by the appellant-insurer, and hence the impugned award is liable to be set aside and reversed, and the liability to pay the compensation ought to have been made payable against the owner-insured. (ix) The learned Tribunal was not justified to add 50% income as future prospect of the deceased considering the principle of Rajesh vs. Rajbir Singh, reported in (2013) 9 SCC 54, case and there was divergent opinion of apex court in Reshma Kumari and Ors. Vs. Madan Mohan and Another, reported in (2013) 9 SCC 65, in adding income for future prospect in case of self employed or on fixed wages person and for an authoritative pronouncement, a Division Bench of Apex Court in deciding the case Shashikala and Other vs. Gangalakshmamma and Others [SLP(C) No. 6016/2014], the matter has been referred to a larger Bench by the order dated 13.03.2015, which in now pending for consideration. Page 8 of 26 (x) It was a clear case of violation of the conditions of the policy and squarely came to the defences available to the insurer-appellant under Section 149(2)(a)(ii) of the MV Act and as such, ought to have held that the liability to pay compensation was that of the owner- insured, and not the insurer-appellant. Submissions:- 6. Mr. Bhatta, learned counsel for the appellant, submits that the appellant insurance company has challenged the impugned judgment and award, so passed by the learned Tribunal, basically on two grounds. Firstly, the deceased was a gratuitous passenger of the Truck and though it is being claimed that he was carrying goods for business and being the owner of the goods, he was travelling in the same, yet CW1 has failed to establish that the goods being carried in the vehicle were purchased by her deceased husband and no such document has been produced before the learned Tribunal to prove the said fact and the goods were also not seized by the police during investigation and as such, it becomes established that the deceased was a gratuitous passenger and since he is a gratuitous passenger, the appellant insurance company is not liable to indemnify the owner on account of violation of the policy condition. 6.1. Secondly, the learned Tribunal had added 50% of the income of the deceased as future prospect, but the deceased was a self employed person and it has been clarified by the Hon’ble Supreme Court in the case of the National Insurance Company Limited vs. Pranay Sethi and Others, reported in (2017) 16 SCC 680, that in case of self employed person, the future prospect has to be added as 40%. And he pointed it out that addition of 50% is permissible only in respect of employed person. Under such circumstances, Mr. Bhatta has contended to set aside the impugned judgment and award. 7. The counter submission of Mr. Sundi, learned counsel for the respondents, is that the appellant herein has taken a plea that the deceased was a gratuitous passenger and there was violation of policy condition and as such, the contention of the appellant that the deceased was a gratuitous passenger cannot be accepted. 7.1. In support of his submission, Mr. Sundi has referred following case laws of Hon’ble Supreme Court:- (i) National Insurance Company Limited vs. Swaran Singh and Others, reported in (2004) 3 SCC 297 and (ii) Pappuu and Others vs. Vinod Kumar Lamba and Another, reported in (2018) 3 SCC 208. 7.2. Mr. Sundi further submits that though a contention is being made by the appellant herein that there was violation of the policy condition, the burden to prove the same lies upon the appellant and in the given factual and legal matrix, it cannot be said that the appellant has been able to discharge the burden of proof. 7.3. Referring to another decision of Hon’ble Supreme Court in the case of Sunita and Others vs. United India Insurance Company Limited and Others, in Civil Appeal No. 9538/2025, Mr. Sundi submits that even if it is found that there was violation of the policy condition, then also the appellant herein may be directed to honor the award and recover the same from the owner of the vehicle. Consideration and Analysis :- 8. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the memo of appeal as well as the grounds mentioned therein and also gone through the impugned judgment and award dated 22.07.2016, and also the decisions relied upon by Mr. Sundi, learned counsel for the respondents. 9. In the view of the submissions, so advanced by learned counsel for both the parties and also in view of the given facts and circumstances on the record, the points, to be determined by this Court are:- 1. Whether the deceased was a gratuitous passenger of the Truck and whether the appellant herein has been able to discharge its burden in establishing the same. 2. Whether the compensation assessed by the learned Tribunal by adding future prospect @ 50% of the income is justified, in view of the decision of Hon’ble Supreme Court in the case of Pranay Sethi (supra). 10. Having gone through the record of the learned Tribunal, this Court finds that the respondent No. 1 herein, as claimant No. 1, had examined herself as CW1 and another witness, namely, Mrinmoy Mahanta, as CW2 and exhibited the Accident Information Report as Exhibit – 1, PM Report as Exhibit – 2, Income Tax Return of the deceased as Exhibit – 3 and Form AY 20, as Exhibit – 4. Page 11 of 26 11. It appears that in the claim petition, the CW1 had categorically stated that the deceased was a dealer of betel-nut, betel-leaf, coconut etc. and on 05.01.2012, he bought some betel-nut and hired a TATA (ACE) vehicle, bearing registration No. AS-01-DD- 4115, to bring those purchased betel-nut from Guwahati to Tezpur and along with him, another person, namely, Sri Gautam Borah, also bought some articles and loaded the same in the said TATA (ACE) vehicle and both of them boarded the vehicle along with their respective articles. In the next morning, on 06.01.2012, at about 04:45 am, when the vehicle reached near Chagoliahot toll, on the NH52, its driver lost his control and in a most rash and negligent manner went off the road and dashed against a tree. In the said accident, the deceased received injuries on various parts of his body and succumbed to his injuries on the spot. 12. In her evidence, Claimant’s witness No.1 (CW-1) had reiterated the aforementioned fact and she was cross-examined by the appellant insurance company. It is elicited in her cross- examination that she does not know the seating capacity of the offending vehicle, but she knows that Gautam Borah survived in the said accident and she had not enquired about the final outcome of the police investigation. She however, admitted that in Exhibit – 3 & 4, there is nothing to indicate the nature of the business of her deceased husband and his shop does not have any name and she is not aware about the Trade Licence, but she knows that the shop was at Chowk Bazar, Municipal Market. She had not submitted any rent receipt to show possession of any shop room by her husband and she had also not submitted any seizure list to substantiate her claim that her husband was carrying goods in the offending vehicle and she had not submitted any challan or any cash memo of the consignment, to show purchase of goods by her husband on the date of the accident and carrying the goods in the offending vehicle. 12.1. She, however, denied the suggestion that no good was carried by her husband in the offending vehicle and she did not know who were the owner and driver of the offending vehicle. It was also elicited that her husband used to visit Guwahati around three times every month to purchase goods and she was not aware about the hired charge of the Truck from Guwahati to Tezpur. 13. CW2, namely, Mrinmoy Mahanta, also lends support to the evidence of the CW1 in respect of the business of betel-nut, betel- leaf, coconut etc. being carried on by the deceased husband of CW1. His evidence reveals that he is also a business man having business of electrical goods, and the deceased also carried on whole sale business of betel-nut, betel-leaf, coconut etc. and his monthly income was around Rs. 20,000/- per month. He also testified that on 05.01.2012, Bhusan Mazumdar went to Guwahati for buying betel-nut and he usually buys the same at Guwahati and Barpeta. On 06.01.2012, when he was proceeding to Guwahati and reached Chagoliahot, on the NH 52, he saw a vehicle coming from the opposite direction at an excessive speed and driven in a rash and negligent manner and then, the driver lost his control and dashed against a tree on the left side of the road. There were two persons in the vehicle and the number of the vehicle was AS-01-DD-4115 and it was in damaged condition. He then reported the matter in the residence of the deceased. Page 13 of 26 13.1. The appellant herein had cross-examined the CW2 and it was elicited that he had not seen the accident and while he reached the place, the driver had left the place and inside the cabin, he had found the deceased Bhusan Mazumdar and injured Gautam Borah, were lying in the vehicle. It is also elicited that the fare of the vehicle would be Rs. 2,500/- and he cannot say whether challan is required in a good carrying vehicle or not and he also cannot say whether any cash memo was issued on purchase of goods by a trader for resale. It is also elicited that the deceased had no permanent shop and he was doing business in a temporary arrangement and such trader is to pay daily toll tax to the municipal board. 14. It appears from the written statement filed by the appellant herein before the learned Tribunal that the insurance policy was issued in the name of one Ziyaur Rahman in respect of the offending vehicle and it was in force at the time of the accident. The appellant had conducted an inquiry and found that at the relevant time, the insurer had violated the policy condition by carrying more than two persons, as the policy provides coverage of only one occupant excluding the driver, but in the instant case, the offending vehicle was carrying three persons including the driver and therefore, the appellant insurance company is not liable to indemnify the owner of the vehicle and that mere filing of a police case is not sufficient to establish the negligence on the part of the driver. 15. It appears that in order to substantiate the plea, the appellant had examined one Kalyan Sen Gupta as DW1, and he testified that the deceased was travelling in the vehicle, bearing registration No. AS-01-DD-4115, as a passenger along with one Gautam Borah and there is no proof that the deceased was travelling with any goods in the vehicle, whereas the fact remains that the vehicle was a goods carrying vehicle and the claimant herself in paragraph No. 10 of the claim petition has stated that her husband was a passenger of the offending vehicle and the company is not liable to indemnify the owner on account of violation of the policy condition and he exhibited the insurance policy as Exhibit – A. 15.1. The claimant had cross-examined the DW1 and it was elicited that he had not investigated the case personally. It was investigated by one Bangkim Das. The Exhibit – A is a certified copy of insurance policy and the vehicle was a good carrying vehicle and he does not know whether the deceased was carrying goods in the aforementioned vehicle at the relevant time and he cannot say whether the deceased was travelling with the goods at the relevant time or not. 16. From the evidence discussed above, it becomes apparent that on the relevant date, the deceased was travelling from Guwahati to Tezpur along with Gautam Borah in the offending vehicle, bearing registration No. AS-01-DD-4115. It is a fact that in the cross- examination, CW1 has admitted that in the Exhibit – 3 & 4 there is nothing to indicate the nature of the business of her husband, yet the fact that her husband was a business man and at the relevant date he was carrying goods from Guwahati to Tezpur along with Gautam Borah in the offending vehicle remained un-rebutted in her cross-examination. It is also a fact that she could not produce the seizure list or the receipt or cash memo of purchasing the goods to substantiate her claim. But, her evidence being corroborated by CW2 goes a long way to show that the husband of the CW1 was a business man and on the relevant date, he was carrying goods in the vehicle and travelling in the same as passenger. The evidence of the CW2 that on 05.01.2012, the deceased went Guwahati for buying and bringing betel-nut, betel-leaf, coconut etc. and on 06.01.2012, in the early morning, he saw the vehicle with the dead body of the deceased inside the same, remained un-rebutted in the cross-examination. 17. Thus, from the evidence of the CW1 and CW2 along with the relevant documents go a long way to show that the deceased, on the relevant date, was travelling in the offending vehicle as owner of the goods. Though the appellant has taken a stand that the deceased was a gratuitous passenger, yet the burden to proof the same lies upon the appellant. The contention of the appellant that the deceased was a gratuitous passenger rests upon the evidence of the DW1. But, he had not investigated the case. The case was investigated by one Bangkim Das and said Bangkim Das has not been examined by the appellant as a witness and report of the said investigator was also not placed on record. Further, the DW1 has admitted in the cross-examination that the offending vehicle was a goods carrying vehicle. 17.1. Thus, the evidence of DW1 is hearsay and the same cannot be relied upon due to non-examination of the investigator, namely, Bangkim Das and also non production of the report of the said investigation before the learned Tribunal. Therefore, his evidence fails to outweigh the evidence of CW1 and CW2, and cannot be accepted. Page 16 of 26 18. It is well settled in the case of Swaran Singh (supra) and Pappuu (supra), that the burden to proof the violation of policy condition is always upon the insurance company. In the case of Swaran Singh (supra), it has been held that insurance company with a view to avoid its liabilities is not only required to show that the conditions laid down under Section 149(2)(a) or (b) are satisfied but is further required to establish that there has been a breach on the part of the insured. 18.1. In the instant case, the appellant herein has failed to substantiate the same by adducing evidence. The plea that the deceased was a gratuitous passenger in the offending vehicle could not be established. 18.2. In that view of the matter, the submission of Mr. Bhatta, learned counsel for the appellant, that the deceased was a gratuitous passenger, left this Court unimpressed. The evidence of CW1 and 2 and the pleading, go a long way to demonstrate that the deceased, on the relevant date, was travelling in the offending vehicle as the owner of the goods. 18.3. It is, however, a fact that neither a cash memo of the goods nor any challan was produced and exhibited by the claimants. Further, no seizure list relating to the goods allegedly carried in the vehicle was also produced and exhibited before the learned Tribunal. But, in view of the unrebutted of oral evidence of CW1 and CW2 and the admission made by the DW1 in his evidence that the vehicle involved in the accident was a goods carrying vehicle, this Court is unable the accept the contention of the appellant that the deceased was travelling as a passenger. Though Mr. Bhatt, learned counsel for the appellant submits that the CW1, in her cross-had admitted that her deceased husband was travelling in the offending vehicle as passenger, yet, such stray statement cannot be read in isolation. It is well settled that evidence has to be read as a whole. Having read her entire statement, together with the evidence of CW2 and pleading and documents so exhibited, this court afraid, the submission of Mr. Bhatta, cannot be accepted. 18.4. Under the given factual and legal scenario, the point No.1 that has been formulated herein above has to be answered in negative, and accordingly the same stands answered. 19. Moving forward to the point No. 2, this Court finds that in the case of Pranoy Sethi (supra), a Constitutional Bench of the Hon’ble Supreme Court, in para No. 59 has held as under. 59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. 59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. 59.5. For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 30 to 32 of Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] which we have reproduced hereinbefore. 59.6. The selection of multiplier shall be as indicated in the Table in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] read with para 42 of that judgment. 59.7. The age of the deceased should be the basis for applying the multiplier. 59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. 19.1. Thus, from paragraph No.59.4. of the aforesaid decision, it becomes apparent that when the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be warrant where the deceased was below the age of 40 years. 19.2. In the instant case, Mr. Bhatta, learned counsel for the appellant taking this Court, through the impugned judgment and award dated 22.07.2016, passed by the learned Tribunal, especially paragraph No. 19, submits that the learned Tribunal had added 50% towards the future prospect and Mr. Sundi, learned counsel for the respondents, also fairly submits that this addition ought to have been 40% as the deceased was a self employed. 19.3. It is not in dispute that the deceased was a self- employed/business man. His age, at the time of death was below 40 years. In that view of the matter addition of 50% of the established income, by the learned Tribunal fails to withstand legal scrutiny, as it is admittedly, contrary to the settled legal proposition by a Constitutional Bench of Hon’ble Supreme Court in the case of Pranay Sethi (supra). In that view of the matter, the same warrants interference of this court. 19.4. It is however, a fact the learned Tribunal had pronounced the impugned judgment and award on 22.07.2016. But, the decision in the case of Pranoy Sethi (supra) was of dated 31.10.2017. And as such, no occasion arises for the learned Tribunal to follow the proposition laid down in the said case. 19.5. But, the decision in Pranoy Sethi (supra) is binding upon this court as the appeal was filed subsequently, and also in view of binding nature of the same under Article 141 of the Constitution of India. As a Constitution Bench ruling declaring the law on “just compensation,” it has retrospective effect in the sense that courts (including High Courts in appeals) must apply its principles to ensure uniformity and correctness, even for accidents or Tribunal awards before 31.10.2017. 20. It is to be noted here that the age, avocation and income of the deceased has not been challenged by the appellant herein. The learned Tribunal had assessed the income of the deceased on the basis of Exhibit – 4, @ Rs. 1,99,000/- per annum and having arrived at a finding that the age of the deceased was 33 years and he was a self employed person, applied the multiplier 16, in view of the decision of Hon’ble Supreme Court in the case of Sarla Verma (AMT) and Others vs. Delhi Transport Corporation and Another, reported in (2009) 6 SCC 121 and thereafter, it had assessed the compensation @ Rs. 31,84,400/- as loss of dependency. To the said amount, the learned Tribunal had added a sum of Rs. 25,000/- as funeral expenses and loss of consortium @ Rs. 1,00,000/-. Thereafter, assessed the total compensation @ Rs. 33,09,000/- and directed the appellant insurance company to pay the same to the claimants/respondents herein and also directed that the amount shall carry interest @6% per annum from the date of filing of the claim petition, i.e. 13.06.2012, till realization. 21. However, in the light of the aforesaid principles so laid down in the case of Pranoy Sethi (supra) and also in the case of Sarla Verma (supra), now, this court proceeds to re-assess the just compensation, which the claimants herein are entitled, as under. 21.1 As stated earlier, the finding of the learned Tribunal in respect of the age, avocation and income of the deceased has not been disputed by any of the parties in this appeal. And having accepted the income of the deceased at Rs. 16,583.33 per month (which is rounded off at Rs. 16,584/), as per the Income Tax return for the assessment year 2011-2012, as self employed (businessman) and his age was 33 years at the time of accident, 40% of the monthly income has to be added as future prospect, as the deceased was below 40 years, in view of the decision of Hon’ble Supreme Court in the case of Pranay Sethi(supra). After addition of 40% to Rs. Page 21 of 26 16,584/ the amount would be Rs. 23,218/. (Rs.16,584/ + Rs.6633.6) = Rs.23,217.6 (rounded off at Rs. 23,218/). 22. Thereafter, in view of the decision of Hon’ble Supreme Court in the case of Sarla Verma (supra), 1/3rd of the aforesaid amount has to be deducted as personal expenses, since he left behind three dependants at the time of accident. After deducting 1/3rd of the above, the amount would be Rs. 15,479/- [Rs.23,218 – 7739.33] = Rs. 15,478.67 (rounded off at Rs. 15,479). Since the age of the deceased, at the time of his death was 33 years, the applicable multiplier, as per decision of Sarala Verma (supra) would be 16. After application of multiplier, the amount would be Rs.29,71,968/- (Rs.15,479/ x 12 x 16 = Rs.29,71,968/- 23. It is to be noted here that under the conventional heads, a sum of Rs. 40,000/- towards each of the member, with 10% increase in every three years has to be awarded under the head – filial consortium, has to be paid in view of the decision of Hon’ble Supreme Court in the case of Magma General Insurance Co. Ltd. vs. Nanu Ram, reported in (2018) 18 SCC 130. Notably, the learned Tribunal had awarded a sum of Rs.1,00,000/ under the head of consortium. It is to be noted here that the deceased herein this case, had left behind his wife and one minor daughter and his mother. 23.1. Relevant observation of the Hon’ble Supreme Court, in para No. 24 of the said decision, is extracted herein below:- “24. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under “loss of consortium” as laid down in Pranoy Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680]. In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs 40,000, each, for loss of filial consortium.” 24. Further, the claimants shall be paid a sum of Rs. 15,000/- under head - funeral expenses. And the aforesaid amounts should be enhanced by 10% in every 3 years. And a sum of Rs. 15,000/- under head - loss of estate, and the aforesaid amounts should be enhanced by 10% in every 3 years in view of the decision of Hon’ble Supreme Court in the case of Pranay Sethi (supra). It is to be noted here that after the accident, almost 14 years elapsed. That being so, the aforesaid amount has to be enhanced by 4 times. 25. The whole calculation, after application of the principle laid down in the case of Sarla Verma (supra) and also in the case of Pranay Sethi (Supra), and Nanu Ram (supra), would be as under:- Sl. No. Heads Calculation I Monthly income Rs. 16,584 II 40% of (I) to be added as future prospect=(Rs.16,584/+Rs.6633.6)= Rs.23,217.6 (rounded off at Rs. 23,218/). Rs.23,218/- III 1/3rd of the (II) deducted as personal expenses of the deceased= Rs.23,218 – 7739.33] = Rs. 15,478.67 (rounded off at Rs. 15,479). Rs. 15,479/- IV Compensation after multiplier of 16 is applied Rs.15,479/ x 12 x 16 = Rs.29,71,968/ Rs.29,71,968/ V Loss of Estate Rs.15,000/- which has to be increased by 10% in every three Rs.15,000/-+ Rs.6,000/-= 26. Accordingly, the compensation, which the claimants/respondents is entitled to, is assessed at Rs.31,81,968/-. Conclusion:- 27. The learned Tribunal had thrusted the liability of payment of the aforesaid amount of compensation i.e. Rs. 31,81,968/- upon the appellant, i.e. the HDFC ERGO General Insurance Company Limited, the insurer of Truck, No. TATA (ACE), bearing registration No. AS-01-DD-4115, with interest @ 6% per annum from the date of filing of the claim petition till realization. 27.1. In view of the decision of Hon’ble Supreme Court in Swaran Singh(supra) and Papu and Other(supra), the burden to prove that the deceased was a gratuitous passenger and that there was violation of policy condition, is always upon the appellant. In view of the discussion in the foregoing para, the liability of establishing of the same is upon the appellant. But, the appellant has failed to establish that the deceased was a gratuitous passenger. years (15,000 x 10/100) = 1500 x 4 = Rs.6,000/- Rs.21,000/- VI Loss of filial Consortium =Rs.40,000/-, which has to be increased by 10% in every three years 40,000 x 10/100 = 4000 x 4 = 16,000/. (Rs.40,000 + 16,000/ = Rs.56,000/-x 3 = 1,68,000/) Rs. 40,000/- + Rs.16,000/-= Rs.56,000/-x 3= Rs.1,68,000/ VII Funeral expenses Rs.15,000/-, which has to be increased by 10% in every three years, Rs.15,000 x 10/100 = Rs.1500 x 4 = Rs.6,000/-(Rs.15,000+ Rs.6,000/ =Rs.21,000/ Rs.15,000/ + Rs.6,000/-= Rs.21,000/ Rs. 31,81,968/- 27.2. This court has also gone through the other decision, i.e. Sunita and Ors.,(supra) so referred by Mr. Sundri, learned counsel for the respondent, but, in view of above factual and legal position, this court is of the view that the proposition laid down in the said decision, has no application in this case. 27.3. Since the deceased had travelled in the offending vehicle as owner of the goods, on the date of accident, in view of decision of Hon’ble Supreme Court in National Insurance Co. Ltd. vs. Baljit Kaur and Others, reported in (2004) 2 SCC 1, the family members of the deceased are entitled to the compensation and can seek the same. The key proposition in the case of Baljit Kaur(supra) are extracted herein below:- (I) The Court has interpreted the 1994 amendment to Section 147(1)(b)(i) of the Motor Vehicles Act, 1988. (II) Post-amendment, a standard insurance policy for a goods vehicle must cover the liability arising from the death or bodily injury to the owner of the goods or his authorised representative carried in the vehicle. (III) This is in addition to third-party liability. However, gratuitous passengers (those not connected to the goods) are not covered under the statutory policy for goods vehicles. (IV) The amendment added the specific words “including owner of the goods or his authorised representative carried in the vehicle” to clarify and extend compulsory coverage to this category, while maintaining the exclusion for ordinary passengers in goods carriages. Page 25 of 26 28. However, the rate of interest, i.e. 6% per annum, so awarded by the learned Tribunal, appears to be in lower side, in view of the decision of Hon’ble Supreme Court in the case of Municipal Corporation of Delhi vs. Uphaar Tragedy Victims Association and Others, reported in (2011) 14 SCC 481. In the said case, it has been held that the interest upon the compensation amount @ 9% per annum, would be justified. Same principle was followed in the case of Kalpanaraj vs. Tamil Nadu State Transport Corporation, reported in (2014) C.R. 693 (SC). Accordingly, it is provided that the amount of compensation shall carry interest @ 9% per annum, from the date of filing of claim petition till realization of the amount. It is being clarified that the entire amount, including the future prospect also, carry interest, in view of the decision of the Hon’ble Supreme Court, in the case of The Oriental Insurance Co. Ltd. Vs. Niru @ Niharika & Ors., Special Leave Petition (C) No. 11340 of 2020. 29. In the result, this Court finds this appeal devoid of merit and accordingly, the same stands dismissed. However, the impugned Award, dated 22.07.2016, stands modified to the extent indicated above. 30. The appellant shall deposit the aforesaid amount, before the learned Tribunal within a period of 30 days, from the date of receipt of the certified copy of this judgment and award. The amount, if already paid to the claimants/respondents has to be deducted from the aforesaid amount. 31. Though the learned Tribunal had not directed to keep some of the amount in fixed deposit in the bank, in the name of the daughter, who, at the time of accident on 06.01.2012, was 6 years old, yet in the meantime she might have attained majority. Even then this Court is inclined to direct the learned Tribunal to keep a sum of Rs. 10,00,000/ fixed deposit in a nationalized bank for a period of 5 years in her name for pursuing her studies etc., and the same shall not be allowed to be withdrawn by the claimant from the bank; without the leave of the learned Tribunal. 32. In terms of above, this MAC Appeal stands disposed of. The Registry shall send down the record of the learned Tribunal with a copy of this judgment and order forthwith. The parties have to bear their own cost. JUDGE Comparing Assistant