JUDGMENT & ORDER : Heard Mr. P. Gautam, learned counsel appearing for the appellant as well as Mr. P. S. Roy, learned counsel appearing for the respondents No.1, 2 and 3 and Mr. K.K. Pal, learned counsel appearing for the respondent No.4. 2. By this appeal by the insurer, the judgment and award dated 27.05.2013 delivered in TS (MAC) No.39 of 2012 has been called in question. From the memorandum of appeal as well as from the submission of Mr. P. Gautam, learned counsel who is representing the appellant, it appears that this appeal is structured fundamentally on three grounds of objection viz. (1) the deduction as made from the income of the deceased is contrary to the law as decided by the apex court in Sarla Verma and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 , (2) the loss of future prospect as added to the loss of dependency has been added wrongly as whether the ratio in Santosh Devi vs. National Insurance Company Ltd. reported in (2012) 6 SCC 421 and ratio in Rajesh vs. Rajbir Singh reported in (2013) 9 SCC 54 is in conflict with the ratio as decided in Reshma Kumari vs. Madan Mohan reported in (2013) 9 SCC 65 and hence to revisit the law, the two Judge Bench of the apex court has made request to the Chief Justice of India for referral to a larger bench. [Shashikala and others vs. Gangalakshmamma and another reported in (2015) 9 SCC 150 ] and (3) whether the income of the deceased as determined by the Tribunal is based on the cogent evidence or not. 3. For purpose of appreciating the grounds of objection, the bare essential fact be introduced at the outset. There is no dispute as to the veracity of the road traffic accident and the death of the deceased namely Biswanath Debbarma from that accident which occurred on 27.12.2011 at Ujanpathalia, Golirai Bari Road involving the vehicle bearing No.TR-01-B-1949, TATA Canter. Even the appellant or any other party does not question that the deceased was a milk-man and he used to carry on the business of selling milk but the question that has been raised succinctly that whether there is any cogent evidence in respect of his income as assessed by the tribunal. Mr. Even the appellant or any other party does not question that the deceased was a milk-man and he used to carry on the business of selling milk but the question that has been raised succinctly that whether there is any cogent evidence in respect of his income as assessed by the tribunal. Mr. Gautam, learned counsel for purpose of showing improper deduction has referred the celebrated decision of the apex court in Sarala Verma (supra) where it has been observed as under: “31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parents and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependent on the father. 32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.” 4. Mr. Gautam, learned counsel while dwelling upon the objection as to the addition of the loss of future prospect, as the tribunal has added 30% of the income of the deceased person as the loss of future prospect as the deceased was aged 19 years at the time of death has submitted that in view of the decision in Shashikala (supra) that cannot be held to be proper. In Sashikala (supra) it has been ordered as under: “Since we have disagreed only insofar as the addition towards the future prospects in case of self-employed or fixed wages to be added to the compensation towards the dependency, the matter may be placed before the Hon’ble the Chief Justice of India for appropriate orders towards the constitution of a suitable larger Bench to decide the said issue.” 5. The said reference has been made as the bench which was presiding over the case of Shashikala (supra) has disagreed with the principle of adding future prospect in case of self-employed or fixed wage in the compensation towards the dependency. According to them, Santosh Devi (supra) and Rajesh (supra) is not in tune with Sarla Verma (supra) as well as Reshma Kumari (supra). Though disagreement has been expressed but in that decision no proposition has been laid to be followed by the tribunal throughout the country. It is to be observed that Rajesh (supra) has also been delivered by a three-judges bench of the supreme court vis-a-vis Reshma Kumari (supra). As Reshma Kumari (supra) had no occasion to consider whether the future prospects to be added or to consider the correctness of the decision of the Santosh Devi (supra) as in Reshma Kumari (supra) the larger bench of the apex court was considering the reference made by Reshma Kumari vs. Madan Mohan reported in (2009) 13 SCC 422 . As such, there is no apparent conflict of judgments of the apex court in the context of Reshma Kumari vs. Madan Mohan (supra). However, Mr. Gautam, learned counsel has made an extreme submission that since the matter has been requested to be considered by the larger bench constituted by the Chief Justice of India, this court should not either go by Santosh Devi (supra) or Rajesh (supra). The future prospect as added to the loss of dependency, may be struck down by this court. Finally Mr. Gautam, learned counsel has submitted that so far the income of the deceased is concerned, it is not supported by any cogent evidence. He has submitted that only the mother of the deceased came in the tribunal to testify and she stated that monthly income of her son was Rs.9,000/- but that was contested by the opposite parties as would be reflected from the cross-examination. He has submitted that only the mother of the deceased came in the tribunal to testify and she stated that monthly income of her son was Rs.9,000/- but that was contested by the opposite parties as would be reflected from the cross-examination. Moreover, there is no corroboration and as such the determination of the income of the deceased as Rs.5,000/- is not based on any evidence. In this regard Mr. Gautam, learned counsel for the appellant has relied on a decision in Syed Basheer Ahamed and others vs. Mohammed Jameel and another reported in (2009) 2 SCC 225 where the apex court has observed as under: “21. In the instant case, the main grievance of the appellant is that the High Court erred in reducing the monthly income of the deceased from Rs. 7,000/- to Rs. 4,000/-. More so, when the claim of the appellants was that the deceased was earning about Rs. 20,000/- per month. It needs little emphasis that insofar as the question of earnings of the deceased is concerned, the onus lies on the claimants to prove this fact by leading reliable and cogent evidence before the Tribunal. A bare assertion in the claim petition in that behalf is not sufficient to discharge that onus. 22. In the present case, as noticed earlier, the deceased was carrying on a business. The Return of Income filed by him for the assessment year 1998-1999 (Ex.P-34) was brought on record along with his monthly turnover and tax paid statements submitted to the Commercial Tax Officer (Ex.P-27). Copies of the current account (Ex.P-38) showing the money deposited in the bank maintained by the deceased have also been brought on record. The Return of Income filed on 15th April, 1998 and the accompanying document, namely, trading and profit and loss account for the period ending 31st March, 1998 show a net profit of Rs. 42,996/-. Taking into consideration the said documents, the Tribunal took the monthly income of the deceased at Rs. 7,000/- per month. However, the High Court felt that in the light of the Income Tax Return, declaring income from the business carried on by the deceased, the yearly income of the deceased was not more than Rs. 40,000/- and, therefore, the Tribunal was not justified in adopting the monthly income of the deceased at Rs. 7,000/- per month to work out the loss of dependency. 40,000/- and, therefore, the Tribunal was not justified in adopting the monthly income of the deceased at Rs. 7,000/- per month to work out the loss of dependency. According to the High Court, the monthly income of the deceased should have been taken at Rs. 4,000/- per month. 23. In our view, though the entries in the current account (Ex.P-38) of the deceased and his transactions with his client, namely, Vasu Agarbathi (Ex.P-23) may not per se be cogent evidence to determine the yearly or monthly income of the deceased from the business he was carrying on, yet we feel that these are some indicators in support of the appellants' plea that the business income of the deceased in the succeeding years could be more than what was declared for the year ended 31st March, 1998. But it is again in the realm of speculation, particularly when, unlike income from salaries, earnings in a business may increase with the buoyancy in business and at the same time may diminish with a recession in trade. 24. As regards the future prospects of the deceased, as noted above, except for copies of account of the deceased in the books of account of his client, after the death, no other reliable evidence has been brought on record to show the future plans of the deceased regarding expansion or diversification of his business. 25. In our view, a bare argument by learned Counsel for the appellants that the deceased had a potential of expanding his business, cannot be accepted as sufficient material to determine the future prospects of the deceased. The decisions of this Court relied upon by learned Counsel for the appellants do not lay down any abstract proposition of law in this regard, which are otherwise distinguishable on facts. 26. In the circumstances, having regard to the material on record, in our opinion, ends of justice would be met if the income of the deceased is taken at Rs. 5,500/- per month or Rs. 66,000/- per annum.” 6. As ancillary to the other objections, Mr. Gautam, learned counsel has submitted that the tribunal does not have any jurisdiction under Section 171 of the Motor Vehicles Act to impose a penal interest and in this regard he has referred a decision of the apex court in National Insurance Co. 5,500/- per month or Rs. 66,000/- per annum.” 6. As ancillary to the other objections, Mr. Gautam, learned counsel has submitted that the tribunal does not have any jurisdiction under Section 171 of the Motor Vehicles Act to impose a penal interest and in this regard he has referred a decision of the apex court in National Insurance Co. Ltd. vs. Keshav Bahadur and others reported in 2004 ACJ 648 where the apex court has observed as under: “14. Though Section 110CC of the Act (corresponding to Section 171 of the New Act confers a discretion on the Tribunal to award interest, the same is meant to be exercised in cases where the claimant can claim the same as a matter of right. In the above background, it is to be judged whether a stipulation for higher rate of interest in case of default can be imposed by the Tribunal. Once the discretion has been exercised by the Tribunal to award simple interest on the amount of compensation to be awarded at a particular rate and from a particular date, there is no scope for retrospective enhancement for default in payment of compensation. No express or implied power in this regard can be culled out from Section 110CC of the Act or Section 171 of the new Act. Such a direction in the award for retrospective enhancement of interest for default in payment of the compensation together with interest payable thereon virtually amounts to imposition of penalty which is not statutorily envisaged and prescribed. It is, therefore directed that the rate of interest as awarded by the High Court shall alone be applicable till payment, without the stipulation for higher rate of interest being enforced, in the manner directed by the Tribunal.” [Emphasis added] 7. In reply to the submission made by Mr. Gautam, learned counsel for the appellant, Mr. P. S. Roy, learned counsel appearing for the respondents No.1, 2 and 3 has submitted that 30% of the income as added to the dependency as loss of future prospect ought to have been 50% in consideration of the age of the deceased in view of Rajesh (supra). He has further submitted that the loss of love and affection has not been assessed as the non-pecuniary damage and on that count the claimants were entitled to get Rs.1,00,000/- as determined by the apex court in the recent cases. He has further submitted that the loss of love and affection has not been assessed as the non-pecuniary damage and on that count the claimants were entitled to get Rs.1,00,000/- as determined by the apex court in the recent cases. Similarly, the loss of estate ought to have been Rs.1,00,000/- in terms of the ape court decision. He has further submitted that the apex court in Ashvinbhai Jayantilal Modi vs. Ramkaran Ramchandra Sharma and another reported in 2014 ACJ 2648 has awarded for loss of love and affection at Rs.1,00,000/- in the identical case and in that case supreme court has only deducted 1/3rd from the income of the deceased for purpose of determining the loss of dependency and as such, according to him, even if the proposition as made in Sarla Verma (supra) is invoked, there is room for deduction less than 50% and as such there is no infirmity in the judgment of the tribunal. Further, he has submitted that the rate as determined by the apex court be followed when this court will make a fresh assessment of the award, if it is at all taken. Mr. Roy, learned counsel has also relied on a three-Judges Bench decision of the apex court in Munnalal Jain and another vs. Bipin Kr. Sharma, reported in 2015 ACJ 1985 where the apex court has approved the principles of Rajesh (supra) by holding that “the deceased being the age of 30 years, 50% is required addition”. According to Mr. Roy, learned counsel in view of that decision which is posterior to the decision of Shashikala (supra), this court should be guided by that decision Munnalal Jain (supra) for two reasons (a) that decision in Munnalal Jain (supra) is a decision of the three-Judges Bench and (b) that is a posterior decision of the apex court. 8. Mr. K.K. Pal, learned counsel however has not made any submission for obvious reason. 9. Having regard to the rival contentions as above, this court is of the view that as no exceptional circumstances have been made out, deduction to the extent of 50% ought to have been made from the income of the deceased for the dependency. The decision as relied on by Mr. 9. Having regard to the rival contentions as above, this court is of the view that as no exceptional circumstances have been made out, deduction to the extent of 50% ought to have been made from the income of the deceased for the dependency. The decision as relied on by Mr. Roy, learned counsel in Ashvinbhai Jayantilal Modi (supra) has been passed by the apex court without having noticed the proposition of law as laid down by Sarla Verma (supra) and as such this court for obvious reason would only be persuaded by the principles as laid down in Sarla Verma (supra) and hence 50% has to be deducted from the assessed income of the deceased, not 1/3rd as deducted by the tribunal. Even in Munnalal Jain (supra) the apex court by observing as follows has affirmed the principle of deduction at 50%: “10. In the case before us there are no such exceptional circumstances or compelling reasons for deviation on the basis of evidence and therefore the deduction of 50% towards the personal and living expenses is not to be disturbed.” 10. This court, in view of Munnalal Jain (supra), as well as on the principles as hitherto followed would not disturb the finding of the trial court where 50% as the loss of future prospect has been added to the income of the deceased for purpose of determining the loss of dependency. There is no appeal from the claimants expressing their grievance. Moreover, when the said judgment in Reshma Kumari (supra) was passed on 27.05.2013, the proposition of Rajesh (supra) was not in the field. However, having due regard to the substantial ends of justice, this court would enhance the loss of estate to Rs.1,00,000/- because it is the discretion of the court to give the appropriate loss of estate to the persons who have lost the same. The other question that has been raised in this appeal is that there is no cogent evidence. On scrutiny the tribunal has taken a very pragmatic approach for determining the income on the basis of the statement made by the mother of the deceased namely Smti. Radhika Debbarma, PW-1 and as such this court is not inclined to disturb the finding relating to the income assessed at Rs.5,000/- per month as the deceased was carrying on business of selling milk. Radhika Debbarma, PW-1 and as such this court is not inclined to disturb the finding relating to the income assessed at Rs.5,000/- per month as the deceased was carrying on business of selling milk. In view of the decision of the apex court, the cogent evidence is not necessarily the documentary evidence only. When the income of a person is assessed, all the times there may not be the physical records reflecting the income. But in some cases, when the persons are pursuing a business of casual nature, such as selling milk, they may not maintain any account and such business practices cannot be held non-existent. If the appellant was serious, they could have inquired through their agency about the extent of the business of the deceased, but no such initiative has been taken as none of the opposite parties in the proceeding being MAC App. No.107 of 2013 has adduced any evidence. The ancillary objection as raised by Mr. Gautam, learned counsel is accepted by this court. It has been held on many a time that within the authority of Section 171 of the Motor Vehicles Act, the tribunals are not permitted to impose penal interest. They have been given the authority to impose interest having due regard to the circumstances so far the effect of the interest is concerned and as such the penal interest as imposed stands quashed. 11. Having held so, this court is now persuaded to reassess the compensation in the following manner: Monthly income of the deceased being Rs.5,000/- and adding therewith 30% as the loss of future prospect, it comes to Rs.6,500/-. As there is no challenge against the application of multiplier, the total dependency comes to Rs.14,04,000/- (Rupees fourteen lakh four thousand). 50% of that amount, in view of the Sarla Verma (supra) has to be deducted. A sum of Rs.7,02,000/- (Rupees seven lakh two thousand) is required to be deducted from the said amount of dependency and thus it comes to Rs.7,02,000/- (Rupees seven lakh two thousand). With the said amount, a sum of Rs.1,00,000/- (Rupees one lakh) as the loss of estate has to be added for each of the claimants and thus it comes to Rs.10,02,000/- (Rupees ten lakh two thousand). With that, the funeral expenses to the extent of Rs.5,000/- (Rupees five thousand) would be added bringing the said sum to Rs.10,07,000/- (Rupees ten lakh seven thousand). With that, the funeral expenses to the extent of Rs.5,000/- (Rupees five thousand) would be added bringing the said sum to Rs.10,07,000/- (Rupees ten lakh seven thousand). Thus, the said compensation has to be paid by the appellant with interest @ 7% per annum from 30.01.2012 till the date of payment. 12. The appellant is therefore directed to pay the said awarded sum in the tribunal and on such payment the tribunal shall disburse the said amount in the following manner: A sum of Rs.2,50,000/- (Rupees two lakh fifty thousand) with the stipulated interest shall be paid to the respondent No.1, the claimant No.3 and the remaining amount shall equally be distributed and paid to the respondents No.2 and 3 on proper identification. If the appellant has paid any amount during these days, that amount shall be deducted from the account on that day and no interest on the said sum shall be carried forward to the day of making the final payment. With this observation, this appeal is allowed to the extent as indicated above. However, there shall be no order as to costs. A copy of this order be furnished to the learned counsel for the parties.