JUDGMENT AND ORDER : 1. Both these appeals being MAC. App. No. 08 of 2014 [Smti Mitali Pal v. Smti Nilima Sarkar (Biswas) & Others] filed by the owner of the vehicle bearing No. TR-01J-1553 (Swaraj Mazda) and MAC. App. No. 43 of 2014 [The Oriental Insurance Co. Ltd. v. Smti Nilima Sarkar (Biswas) & Others] filed by the insurer, who has been saddled with the liability of payment of the award, under Section 173 of the Motor Vehicle Act are directed against the common judgment and award dated 27.08.2013 passed by the Motor Accident Claims Tribunal, West Tripura, Khowai in T. S.(MAC) 07 of 2013. 2. Heard Mr. T. D. Majumder, as well as Mr. A. Sengupta, learned counsel appearing for the appellant and Mr. P. Gautam, learned counsel appearing for the respondents in MAC. App. No. 08 of 2014. Also heard Mr. P. Gautam, learned counsel appearing for the appellant and Mr. A. Sengupta, learned counsel appearing for the respondents in MAC. App. No. 43 of 2014. 3. In the appeal by the owner, the owner has challenged the following findings returned by the said judgment and order dated 27.08.2013: “ considering the beneficial object of the Act. It is directed O.P. No. 2, the Oriental Insurance Co. Ltd., shall satisfy the award of Rs. 7,22,200/- within a period of 2 months from today failing which, the amount of compensation shall carry interest @ 9% per annum and the O.P. No. 2 is at liberty to recover the amount from the O.P. No. 1, insurer of the vehicle. For the purpose of recovering the amount paid from the owner, ( insurer O.P. No. 2), the insurer shall not be required to file a suit. It may institute a proceeding before this tribunal. Before release of the amount to the claimant-petitioner, the owner of the offending vehicle, O.P. No. 1, Smti Mitali Pal is directed to furnish security for the entire amount which the insurer will pay to the claimant-petitioners within a period of 2 months from today, failing which, the liability of interest if any, be also shouldered by the O.P. No. 1. The offending vehicle bearing No. TR-01J- 1553 (Swaraj Mazda), is attached by the tribunal as a part of the security and thus the assistance of Dy. The offending vehicle bearing No. TR-01J- 1553 (Swaraj Mazda), is attached by the tribunal as a part of the security and thus the assistance of Dy. Transport Commissioner, West Tripura, Agartala is hereby sought for to ensure the production of the vehicle before this Tribunal as and when required and also to take measures so that the owner of the offending vehicle, in the mean time, cannot transfer the ownership of the offending vehicle before recovery of the awarded amouint by the O.P. No. 2, Insurance Company, in any manner whatsoever with a view to invading the liability of payment. This, tribunal being the executing court shall reserve its opinion to pass any other appropriate orders in accordance with law as to the manner in which the owner of the vehicle (OP. No. 1) shall make payment to the insurer (OP. No. 2). In case there is any default it shall be open to this tribunal to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. insured.” 4. That apart the owner, the appellant has urged that for having the coverage by the statutory policy it is not needed to deposit extra premium for the helper in view of Section 147 of the M.V. Act, 1988. According to the said appellant, there is no evidence at all to hold that the deceased was a gratuitous passenger. 5. On the other hand, ground urged by the insurer appellant is that when it has been held by the tribunal that the deceased was a gratuitous passenger, the insurance company cannot be saddled with any liability whatsoever. For such circumstances, the tribunal has no jurisdiction to direct the insurer to deposit the entire money and to recover the same from the owner of the vehicle inasmuch as, in absence of any legal obligation, such direction is wholly unsustainable. 6. Another ground urged by the insurer appellant is that the tribunal by adding 30% as the loss of future prospect of income has committed serious illegality as according to the insurer appellant, Santosh Devi v. National Insurance Company Ltd. And Others has been diluted by Reshma Kumari and Others v. Madan Mohan and Another reported in 2013 AIR SCW 3120. 7. Mr. T. D. Majumder, learned counsel appearing for the appellant in MAC. App. 7. Mr. T. D. Majumder, learned counsel appearing for the appellant in MAC. App. No. 08 of 2014 and Mr. P. Gautam, learned counsel appearing for the appellant in MAC. App. No. 43 of 2014. Mr. T. D. Majumder, learned counsel have submitted in one voice that the deceased was a helper cum driver in the vehicle having registration No. TR-01J-1553 (Swaraj Mazda), which met the accident. From the said road-traffic accident the deceased received grievous injuries on diverse part of the body. The deceased was earning a sum of Rs. 7,500/- per month. 8. By filing the application under Section 166 of the M. V. Act, the dependent-claimants urged for the compensation of Rs.11,60,000/-. After appreciating the evidence, by the judgment and award dated 27.08.2013 in T.S (MAC). No. 07 of 2013, the claimants were declared entitled to have the total compensation of Rs. 7,22,000/- from the owner of the vehicle, if the vehicle is not covered by the valid insurance coverage. 9. Being aggrieved by the findings as extracted above, these appeals have been filed for questioning the said common judgment and order dated 27.08.2013. No. 07 of 2013, the claimants were declared entitled to have the total compensation of Rs. 7,22,000/- from the owner of the vehicle, if the vehicle is not covered by the valid insurance coverage. 9. Being aggrieved by the findings as extracted above, these appeals have been filed for questioning the said common judgment and order dated 27.08.2013. The fundamental grounds as urged in these appeals can broadly be encapsulated as under: (i) Whether the deceased who had been working as the driver cum helper of the offending vehicle can be covered under Section 147(1) of the M.V. Act - which describes that (1) in order to comply with the requirements of this Chapter, a policy of insurance must be a policy which- (a) is issued by a person who is an authorized insurer, and (b) insures the person or classes of person specified in the policy ot the extent specified in subsection (2)- (i) Against any liability which may be incurred by him in respect of the death of or bodily [injured to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) Against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: Provided that a policy shall not be required- (i) To cover liability in respect of the death, arising out of an in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923(8 of 1923) in respect of the death of, or bodily injury to, any such employee- (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability? 10. Provision of Section 147 of the M.V. Act may not have direct relevance in weighing the case. From the other side, Mr. 10. Provision of Section 147 of the M.V. Act may not have direct relevance in weighing the case. From the other side, Mr. P. Gautam, learned counsel has submitted that owner's plea is not sustainable for reason that no premium has been paid for additional employee or the worker. 11. Mr. T. D. Majumder, learned counsel has referred a decision of this High Court, Sri Satya Ranjan Debbarma v. Smt Swapna Roy and Others [in MAC. App. No. 35 of 2011] judgment dated 12.06.2015 as enunciated as under: “....in view of the IRDA guidelines and the judgment of the Delhi High Court in Yashpal Luthra and another vs. United India Insurance Co. Ltd. and another, 2011 ACJ 1415 as well as the judgment of a learned Single Judge of the Gauhati High Court in MAC APP 14 of 2009 (The United India Insurance Company Limited vs. Smt. Uma Kalai (Debbarma) & ors., the insurance company in the case of a package/comprehensive policy must pay the entire amount. 7. On the other hand, my attention has been drawn to the judgment of the Apex Court in National Insurance Co. Ltd. vs. Balakrishnan and another, 2013 ACJ 199 , wherein though the Supreme Court approved the law laid down in the Delhi High Court judgment, but went on to hold that merely because the policy is termed as a package or comprehensive policy is not sufficient to hold that it is such a policy but the terms and conditions of the policy will have to consider. 8. Reference may be made to Paras 22 and 23 of the judgment of the Apex Court in Balakrishnans (supra) case, which reads as follows: “22. In view of the aforesaid legal position, the question that emerges for consideration is whether in the case at hand, the policy is an “Act Policy” or comprehensive/package Policy. There has been no discussion either by the Tribunal or the High Court in this regard. True it is, before us, Annexure P-1 has been filed which is a policy issued by the insurer. It only mentions the policy to be a comprehensive policy, but we are inclined to think 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. 23. It only mentions the policy to be a comprehensive policy, but we are inclined to think 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. 23. In view of the aforesaid analysis, we think it apposite to set aside the finding of the High Court and the Tribunal as regards the liability of the insurer and remit the matter to the Tribunal to scrutinize the policy in a proper perspective and, if necessary, by taking additional evidence and if the conclusion is arrived at that the policy in question is a Comprehensive/Package Policy, the liability would be fastened on the insurer. As far as other findings recorded by the Tribunal and affirmed by the High Court are concerned, they remain undisturbed.” 9. Similar view has been taken by the Supreme Court in Oriental Insurance Co. Ltd. vs. Surendra Nath Loomba and others, 2013 ACJ 321 , wherein also the matter was remitted to the Tribunal to decide the question as to who is liable in terms of the policy and the IRDA. As far as the present case is concerned before the Tribunal neither the claimant nor the owner nor the insurance company led any evidence as to the terms of the policy. Therefore, I feel that following the judgment in Balakrishnans (supra) case it would be proper to remit the case back to the Tribunal only for the purpose of fixing the liability.” 12. Mr. T. D. Majumder, learned counsel has brought to the notice of this Court another decision of this Court in Kalpana Debnath v. Sri Parimal Bhowmik [Judgment and order dated 06.07.2015 in MAC. App. No. 86 of 2010]. In Kalpana Debnath (supra) it has been observed as under: “As far as the liability is concerned the insurance company cannot be exonerated of its liability to pay the compensation. The owner of the vehicle has produced on record the policy of insurance which clearly shows that the seating capacity of the vehicle has been mentioned as 3 + 1. Fifty rupees has been paid as premium to cover extra liability in respect of the driver and one fifty rupees MAC App. The owner of the vehicle has produced on record the policy of insurance which clearly shows that the seating capacity of the vehicle has been mentioned as 3 + 1. Fifty rupees has been paid as premium to cover extra liability in respect of the driver and one fifty rupees MAC App. No. 86 of 2010 Page 6 of 6 6 has been paid for premium to non fare paying passengers. This means that the insurance company has covered liability for the driver and three non-fare paying passengers because the total seating capacity is four. In this view of the matter the insurance company cannot escape its liability and it is held liable to pay the awarded amount.” 13. Having placed reliance on the said observation, Mr. T. D. Majumder, learned counsel has referred to the similar clause appearing in the Insurance Policy No. 322700/31/2013/1876 for the period from 09.05.2012 to 08.05.2013, where the following entry has been made: Registration Mark & Place Engine No. Chassis No. Make Type of Body G.V.W. Year of Seating Cap Manf (Incl Driver) Cubic Capacity TR-01J-1553 WEST TRIPURA XLCGV82501 VGWEL4GM 0089478 Truck WV- 26S CAB LOADBODY 7500 2008 2+1 3455 Limitation as to use The Policy covers use only under a permit within the meaning of the Motor Vehicle Act 1988 or such a carriage falling under Sub-section 3 of the Section 66 of the Motor Vehicle Act 1988. 1. Use only for carriage of goods within the meaning of the Motor Vehicle Act. The Policy does not cover: (1) Use for organized racing, pace-making, reliability trial or speed testing.(2) Use whilst drawing a trailer except the towing (other than for reward) of anyone disabled mechanically propelled vehicle.(3) Use for carrying passengers in the vehicles; except employee (other than the driver) not exceeding the number permitted in the registration document and coming under the purview of Workmen's Compensation Act, 1923. 14. Mr. T. D. Majumder, learned counsel has submitted that the above clause has clearly indemnified the insured vehicle, but prohibited the use of carrying passengers in the vehicle, except employees (other than the driver) not exceeding the number permitted in the registered documents and coming under the purview of Workmen's Compensation Act, 1923. As such, the finding returned by the tribunal is a gross misreading of the insurance condition. 15. Mr. As such, the finding returned by the tribunal is a gross misreading of the insurance condition. 15. Mr. P. Gautam, learned counsel in reply has submitted that in Ramashray Singh v. New India Assurance Co. Ltd., and Others, reported in AIR 2003 SC 2878, provisions of Section 147 had fallen for consideration and the Apex Court had occasion to observe as under: “12. So a person carried in pursuance of a contract of employment would be a passenger and would be covered as such. The exclusion of this clause in the proviso to Section 147(1) (b) of the present Act bolsters our reasoning that employees other than the three mentioned are not covered by Section 147(10(b). 13. The appellant's next submission was that the concerned employee was a 'conductor'. It is doubtful whether a 'khalasi' and a conductor are the same. But assuming this were so, there is nothing to show that the appellant had paid any additional premium to cover the risk of injury to a conductor. On the contrary, the policy shows that premium was paid for 13 passengers and 1 driver. There is no payment of premium for a conductor.” 16. Having appreciated the grounds as urged in these appeals and the submission made in respect of these grounds, this Court is of the view that question indeed calls for determination is that whether the insurance policy [under No. 322700/31/2013/1876 with period of insurance from 09.05.2012 to 08.05.2013] would cover the liability emerging from the unfortunate death of the victim, Sanjay Biswas. 17. It is not in dispute that while Sanjay Biswas was working as a helper cum driver of the said vehicle, the said vehicle met an accident on 07.01.2013 on Assam-Agartala Road near the crossing of Karam Cherra Bazzar under Manu Police Station. It is also not in dispute that the deceased was 28 years of age and he had valid driving licence bearing No. TR-W/12159/0. Even no ground has been urged in respect of the dependents who have filed the claim petition under Section 166 of the M. V. Act. Though the tribunal has awarded a sum of Rs. 7,22,200/- much below what they claimed, the claimants did not file any appeal. 18. Even no ground has been urged in respect of the dependents who have filed the claim petition under Section 166 of the M. V. Act. Though the tribunal has awarded a sum of Rs. 7,22,200/- much below what they claimed, the claimants did not file any appeal. 18. As the principles, this Court does not have any difficulty to accept that a gratuitous passenger being not the owner or a representative of the owner of the goods cannot be covered for the reason that the said person was carried in the goods-carriage within the meaning of Section 2 (14) of the M. V. Act, 1988, but the exception has been curved out in Section 147(1) of the M. V. Act delineating how such exception would operate. A catalogue of persons or classes of persons has been provided under Section 147(1)(b) of the M. V. Act, for coverage under 'the Act Policy'. 19. But the policy alone is not adequate to have the benefit of coverage, due premium has to be paid. Prohibition under the said policy would operate for the passengers in the vehicle under reference except the employees [other than the driver] not exceeding the number permitted in the registration document and coming under the purview of the Workmen's Compensation Act,1923. 20. The claimants have proved by the testimonies of PWs that the victim died when he was in the vehicle as the helpercum- driver. Similarly, testimony of PW-1 has been corroborated by PW.2. PW-2 has further added that the deceased was the sole bread-earner in the family. 21. The owner and the insurer did not adduce any evidence for rebutting the said claim. The owner could have adduced the driver, namely, Rana Pratap Das who was driving the vehicle when it met the accident. Regarding the claim that the deceased was the helper-cum-driver of the vehicle as asserted at column No. 3, by the written objection submitted by the owner it has been asserted: That with regard to Para Nos. 1, 2, 3, 4, 5, 6 and 7 of the said claim petition the averments are beyond the knowledge of the answering opposite party hence denied and disputed by the answering opposite party.” 22. Thus, there is no reason not to rely on the evidence led by the claimants. 1, 2, 3, 4, 5, 6 and 7 of the said claim petition the averments are beyond the knowledge of the answering opposite party hence denied and disputed by the answering opposite party.” 22. Thus, there is no reason not to rely on the evidence led by the claimants. Having held so, this Court is of the considered opinion that the insurance condition as extracted above, covers the damages emerged from the said death entirely, as the deceased was the employee, other than the driver and within the permitted seating capacity. As such, the insurer-appellant cannot disown the liability of payment of the awarded sum. 23. Hence, the finding of the tribunal as reproduced above is interfered with and set aside. The other ground as urged by the insurer-appellant that by adding 30% as the loss of future prospect of income is wholly unsustainable inasmuch as addition of loss of future prospect as espoused by Santosh Devi (supra), has now been further consolidated by the latter judgments of the Apex Court. 24. Moreover, in Reshmakumari v. Madan Mohan (supra) whether for death of self-employed person loss of future prospect can be added or not was not under reference. Hence, this Court does not find any substance in these objections. As such, the income and dependency as assessed by the tribunal is left unaltered. The entire award, in view of what has been held above, shall be paid by the Oriental Insurance Co. Ltd. within a period of 2 months from today in the tribunal after deducting the sum which has been paid with interest @ 9% per annum from 08.04.2013 till the payment is made. 25. The said interest shall not be treated as the penal interest any further. So far as the mode of payment of the award to the claimants is concerned, the mode as directed by the impugned judgment and award shall be observed. If any relaxation is required by the claimants, they would approach the tribunal for necessary order. 26 In the result, the appeal being MAC. App .No. 43 of 2014 filed by the Oriental Insurance Co. Ltd. is dismissed. However, the appeal being MAC. App. No. 08 of 2014 filed by Smt Mitali Paul, the owner of the vehicle bearing No. TR-01J-1553 (Swaraj Mazda Truck) is allowed in terms of the above observation and direction. Send down the LCRs forthwith.