JUDGMENT AND ORDER : Both these appeals are clustered for disposal by a common judgment inasmuch as, the challenge in these appeals is directed against the judgment and award dated 12.06.2013, delivered in T.S. (Mac.) 397 of 2012, by the Motor Accident Claims Tribunal, West Tripura, Agartala, Court No. 4. Mac. App. No. 113 of 2013 (Sri Ajoy Debnath & Others v. Sri Prantosh Deb & Another) has been filed for enhancing the award, as according to the appellants, the income as assessed by the Tribunal is not the true reflection. The tribunal ought to have determined the income of the deceased, who had been working as a Pumb Operator at Rs. 8,000/- per month. 2. In the appeal No. 160 of 2013, the appellant, the owner of the offending vehicle bearing registration No. TR-01-Z-0607 has raised the objection that since the vehicle on the day of accident i.e. 27/28.02.2012 was covered by a comprehensive package policy liability of paying the award ought to have been shifted to the respondent No. 5 of the said appeal. 3. The brief fact as is essential to understand these challenges is that on 27/28.02.2012 a road traffic accident had taken place for the negligent driving of the said vehicle bearing registration No. TR-01-Z-0607 causing the fatal injuries to Arun Debnath, son of the claimants No. 1-2 and brother of the claimants No. 3-4. 4. The deceased was working as Pump Operator. The fact that has been espoused by the appellant is that the deceased was returning home by boarding the vehicle bearing registration No. TR-01-Z-0607 (Tata Indigo CS) through the Assam Agartala Road. The vehicle was being driven negligently by its driver at about 1.15 am (night). When the vehicle reached at Resam Bagan in the Assam Agartal Road, it met the said accident. As a result, Arun Debnath sustained series of fatal injuries when he was brought to the GBP Hospital, the attending doctor declared him dead. 5. The claim was for Rs. 22 lakhs. After appreciating the evidence, by the impugned judgment and award dated 12.06.2013, the Tribunal awarded the sum of Rs. 9 lakhs 51 thousand with interest @ 7% w.e.f. 07.09.2012 the date of filing of the claim petition. The interest @ 9% per month was also given if the money is not paid within 2 months from the date of the said judgment. 6. 9 lakhs 51 thousand with interest @ 7% w.e.f. 07.09.2012 the date of filing of the claim petition. The interest @ 9% per month was also given if the money is not paid within 2 months from the date of the said judgment. 6. By the said judgment and award dated 12.06.2013, an additional compensation for loss of estate has been awarded to the claimants No. 1-2 at Rs. 2,75,500/- (Rupees Two Lac Seventy-five thousand five hundred) and Rs. 2,00,000/-for the claimants No. 3-4. 7. Having regard to the records as produced, this Court does not find any infirmity in the award and it does not warrant any interference. Accordingly, the appeal being Mac. App. 113 of 2013, stands dismissed. 8. Mr. T. D. Majumder, learned counsel appearing for the appellant in Mac. App. No. 160 of 2013 has submitted that since the claimant was the occupant in the vehicle which is admittedly covered by a “comprehensive package policy”, the liability of payment has to be shifted on the insurer, the respondent No. 5. 9. Mr. Majumder, learned counsel has referred a decision of the Apex Court in National Insurance Company v. Balakrishnan and Another, reported in (2013) 1 SCC 731 , where the Apex Court having considered the previous judgments including Bhagyalakshmi v. United Insurance Co. Ltd. reported in (2009) 7 SCC 148 and Yashpal Luthra v. United India Insurance Co. Ltd., 2011 ACJ 1415 (Del.) has observed that: “26. In view of the aforesaid factual position, there is no scintilla of doubt that a “comprehensive/package policy” would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an “Act Policy” stands on a different footing from a “comprehensive/package policy”. As the circulars have made the position very clear and IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a “comprehensive/package policy” covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the “Act policy” which admittedly cannot cover a third-party risk of an occupant in a car. But, if the policy is a “comprehensive/ package policy”, the liability would be covered. These aspects were not noticed in Bhagyalakshmi and, therefore, the matter was referred to a larger Bench. But, if the policy is a “comprehensive/ package policy”, the liability would be covered. These aspects were not noticed in Bhagyalakshmi and, therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the Delhi High Court and we have also reproduced the same”. 10. It has been emphasized by the Apex Court that “there has to be a scanning of the terms of the entire policy to arrive at the conclusion whether it is really a “package policy” to cover the liability of an occupant in a car. However, in this appeal, no such dispute has been raised by any of the parties. 11. However, Mr. Lodh, learned counsel has submitted that the decision of the Apex Court in Balakrishanan (supra) is in the background of certain facts which are not similar to that attendant facts in this case. 12. Mr. Lodh, learned counsel having referred to the material particulars of the claim petition has pointed out that in the written objection filed by the respondent No. 5 in T. S. Mac. No. 397 of 2012, it has been asserted in the Para-6 as under: “6. That, in regards to Para 10 & 11, it is not known to the present answering O.P. whether the deceased person were not a passer by but a passenger traveling by the offending vehicle No. TR-01-Z-0607. It would be pertinent it appears from the claim petition offending vehicle were insured as a private car and as such the said vehicle used as a passenger vehicle in terms of commercially violating the terms & conditions of the policy for which the owner of the vehicle would be liable to be paid any compensation if awarded (sic).” 13. The respondent No.5 in their written objection, in the Para-5 has dealt with the relevant statements made in the columns No. 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13 and 19 of the claim petition in the following manner: “These all are unknown to the opposite party No. 1 and all these facts are requested to be proved by adducing evidence by the claimant petitioner strictly as per law. However, the all are matter of record and all these statements are vehemently denied by the answering respondent No. 1(sic)”. 14. Based on these statements Mr. Lodh, learned counsel has contended that from reading of the Para 5 of the written objection filed by the respondent No.5 it has to be without any other alternative meaning be assumed that the vehicle was being used as a passenger car violating the terms and conditions of the policy and as such the deceased cannot be treated as an occupant. In rejoinder Mr. Majumder, learned counsel appearing for the appellant has submitted that the fact as averred by the appellants in their claim petition, has been denied but made subject to proof. There is no doubt, according to Mr. Majumder that the claimants have proved that the deceased was the occupant in the vehicle and no evidence is available in the record that for such journey the deceased was supposed to pay any money to the owner or such money was paid. 15. Having regard to the contentions as raised by the learned counsel appearing for the appellant and the respondent No. 5, this Court is constrained to observe that the averments are inadequate leaving hardly any space for this Court to draw presumption or providing the foundation. Hence, this Court has to draw the presumption having regard to the entire facts and circumstances. This Court is in disagreement with the submission of Mr. Lodh, when he had submitted that it is the duty of the owner to prove that the vehicle was not used for any commercial purpose and or that the deceased was a mere occupant of the vehicle. 16. When the claimants have successfully proved that the journey was not a fare-based journey and when the respondent No. 5 has claimed in a categorical manner that the vehicle was being used for a commercial purpose, the onus immediately shifts to the respondent No. 5 to prove that the vehicle was being used for the commercial purpose at the time when it met the accident. 17. It is not in dispute that the respondent No. 5 did not adduce any evidences or did disclose the source of the averment that the vehicle was being used for commercial purpose and as such this Court is not inclined to accept the contention that the deceased was a fare-based passenger. 17. It is not in dispute that the respondent No. 5 did not adduce any evidences or did disclose the source of the averment that the vehicle was being used for commercial purpose and as such this Court is not inclined to accept the contention that the deceased was a fare-based passenger. Hence, this appeal is allowed and the liability of payment shall be with the respondent No. 5. The payment shall be made within a period of 2 months from today to the claimants. 18. However, this Court is of the opinion that the penal interest as has been imposed has to be interfered with as within this provision of Section 171 of Motor Vehicle Act such penal interest can be imposed by the tribunal. 19. In terms of the above, the appeal being numbered Mac. App. No. 160 of 2013 stands disposed of. Send down the LCRs forthwith.