JUDGMENT : SATYEN VAIDYA, J. 1. By way of instant appeal, the appellant (Insurer) has assailed award dated 06.01.2015, passed by the learned Motor Accident Claims Tribunal, Shimla, H.P. in M.A.C.C. No. 62-S/2 of 2014/10, whereby a sum of Rs. 12,11,000/- has been awarded as compensation in favour of the claimants. Further, the claimants have also been held entitled to interest @ 7.5% from the date of filing of petition till realization of the entire amount. The liability to pay compensation has been fastened on the insurer. 2. The facts giving rise to filing of claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short “Act”) are that Shri Tara Chand while driving Truck No. HR-37A-6995 met with an accident on 9.2.2010 and died as a result of injuries suffered thereby. The truck was owned by respondent No. 7 (for short “owner”) and was insured by the appellant (for short “insurer”). 3. The claim petition was filed by respondents No. 1 to 6 herein (for short “claimants”) as legal representatives of deceased Shri Tara Chand. It was averred in the claim petition that the cause of accident was abrupt latent defect in the vehicle and also that the vehicle was not properly maintained by the owner. 4. The owner contested the petition by denying the improper maintenance of the vehicle. However, the cause of accident was admitted to be development of latent defect in the vehicle. 5. The insurer contested the petition on the ground that the same was not maintainable as the accident was caused by rash and negligent driving of deceased driver Tara Chand. Collusion between the claimants and the owner and the breach of terms of insurance policy was also alleged. 6. Learned tribunal had framed the following issues: 1. Whether Sh. Tara Chand died in a road accident on account of the sudden mechanical snag in Vehicle No. HR-37A-6995 at Dhalli P.S. Rajgarh, District Sirmour on 09.02.2010 at 7/7.30 P.M. as alleged? OPP 2. If issue No. 1 is decided in affirmative whether the petitioners are entitled for compensation of Rs. 15,00,000/- (Fifteen lacs)? OPP 3. Whether the petition is not maintainable? OPR 4. Whether the petitioners are estopped by their act and conduct to file the present petition? OPR 5. Whether the petitioners have no locus-standi to file the present petition? OPR 6. If issue No. 1 is decided in affirmative whether the petitioners are entitled for compensation of Rs. 15,00,000/- (Fifteen lacs)? OPP 3. Whether the petition is not maintainable? OPR 4. Whether the petitioners are estopped by their act and conduct to file the present petition? OPR 5. Whether the petitioners have no locus-standi to file the present petition? OPR 6. Whether the petitioners have concealed the material facts in the court, as alleged? OPR 7. Whether the vehicle was being driven in violation of terms and conditions of the policy? OPR-2 8. Whether the driver was not holding valid and effective driving licence at the time of accident? OPR-2 9. Relief. Issues No. 1 and 2 were answered in affirmative and other issues were answered in the negative. The accident was held to be caused due to development of latent defect in the vehicle. The vehicle was also held to be not properly maintained by the owner. Accordingly, the compensation along with interest, as noticed above was awarded in favour of the claimants and insurer was saddled with liability to pay the same. 7. I have heard Mr. Jagdish Thakur, Advocate, for the appellant, Mr. Raman Sethi, Advocate, for respondents No. 1 to 6 and Mr. Romesh Verma, Advocate, for respondent No. 7 and have also gone through the entire record carefully. 8. Shri Jagdish Thakur, Advocate, learned counsel for the insurer has submitted that findings as to development of latent mechanical defect in the vehicle was without any evidence. The accident was result of rash and negligent driving of the driver, deceased Shri Tara Chand. Therefore, the claim petition on behalf of his legal representatives was not maintainable under Section 166 of the Act. He has further contended that the learned tribunal has considered the income of deceased at Rs. 9,000/- per month merely on surmises and conjectures, whereas there was no legal evidence to warrant such conclusion. 9. A perusal of the impugned award reveals that the learned tribunal has placed reliance upon document Ex.PW2/A, the report prepared by police mechanic, after examination of the vehicle involved in the accident. Learned tribunal has proceeded on the premise that the factum of development of latent defect in the vehicle was proved from report, Ex.PW2/A. 10. The author of Ex.PW2/A was examined as their witness by the claimants as PW2. Learned tribunal has proceeded on the premise that the factum of development of latent defect in the vehicle was proved from report, Ex.PW2/A. 10. The author of Ex.PW2/A was examined as their witness by the claimants as PW2. He simply deposed that he was working as Motor Mechanic at Police Lines Nahan. On 26.02.2010, he had inspected Truck No. HR-37A-6995 on the site of accident and had prepared mechanical report, Ex.PW2/A. In cross-examination on behalf of the owner, PW-2 admitted that breakage found in the vehicle was result of accident. 11. Perusal of Ex.PW2/A, nowhere suggests that accident was due to development of some latent defect in the vehicle. PW-2 had found most of the part of the vehicle broken. As per him, front left side tyre was found burst. His analysis was that in case the front tyre of a loaded vehicle bursts when the vehicle was in motion, the vehicle can tilt on the side of such burst. On the basis of such material, the finding and conclusion drawn by the learned tribunal regarding cause of accident cannot be sustained. The hypothetical analysis drawn by PW-2 cannot be said to be sufficient to prove the cause of accident to be development of sudden mechanical fault in the vehicle. No such statement has been made by PW-2 while being examined by the learned tribunal. There was no opinion whether tyre burst was preceded by accident or the condition of the tyre was due to fall of vehicle into gorge, which according to this witness was about 100 feet down below the road. PW-2 had reported that he had examined the accident vehicle on spot and most of its parts were found broken. He admitted that parts had broken as a result of fall of vehicle into gorge. The same could be the cause of damage to the tyre also. 12. The onus to prove the factum of cause of accident being development of latent defect in the vehicle was on the claimants. Except examination of PW-2, the claimants had not led any further evidence to discharge the burden. No doubt, the learned tribunal was to apply the standard of preponderance of probabilities, yet the evidence led by the claimants cannot be said to be sufficient to discharge their burden. 13. Except examination of PW-2, the claimants had not led any further evidence to discharge the burden. No doubt, the learned tribunal was to apply the standard of preponderance of probabilities, yet the evidence led by the claimants cannot be said to be sufficient to discharge their burden. 13. When the claimants have been held by this Court to have failed in proving the cause of accident to be development of some abrupt latent defect in the vehicle, the claim petition under Section 166 of the Act cannot be said to be maintainable. Consequentially, in the facts of instant case, where the vehicle had abruptly rolled down will raise the presumption of rash and negligent driving as cause of accident by application of principle of res ipsa loquitur. 14. The origin and genesis of a right to file claim petition for claiming compensation with respect to loss suffered in a motor vehicle accident is under the law of tort. The basis of claim has to be a wrong done by a person other than the one for whose death the claim is made. The claim cannot be linked with the death of the person, who himself was responsible for causing accident and consequently his own death, more so when the claim has been preferred by invoking jurisdiction of Motor Accident Claims Tribunal under Section 166 of the Motor Vehicles Act. 15. In above discussed circumstances, the fact whether the vehicle was properly maintained by owner or not loses relevance. The claimants could maintain a petition in case they could prove the cause of accident to be attributable to the owner, which they miserably failed, as noticed above. 16. There is no dispute on the fact that deceased Shri Tara Chand was the driver employed on Vehicle No. HR-37A-6995 by the owner. That being so, the question arises whether the insurer can avoid the liability even under the Employees Compensation Act, 1923? 17. To examine the above noted question, provisions of Section 147 of the Act can be gainfully noticed. That being so, the question arises whether the insurer can avoid the liability even under the Employees Compensation Act, 1923? 17. To examine the above noted question, provisions of Section 147 of the Act can be gainfully noticed. The Act mandates the policy of coverage of third party risk but at the same time, section 147 carves out an exception by way of proviso appended to subsection thereto which reads as under: “Provided that a policy shall not be required: (i) to cover liability in respect of the death, arising out of and 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. (b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle. (c) if it is a goods carriage, being carried in the vehicle. (ii) to cover any contractual liability.” It is equally true that the Act only mandates the policy coverage for third party risks but at the same time does not prohibit the insurer to enter into a special contract of insurance with insured for coverage of risks of the persons and the property over and above the statutory coverage as provided under Section 146 and 147 of the Act. 18. It is not the case of insurer that the death of late Shri Tara Chand in the accident in question, would not entitle his legal representatives to claim compensation even under the Employees Compensation Act. By virtue of proviso to sub-section (1) to Section 147 of the Act, the claimants will be so entitled. Thus, the question formulated above is answered accordingly. 19. The learned Tribunal has taken the income of deceased as Rs. 9,000/- per month. To this effect, deposition of PW-4, the wife of deceased has been relied upon. Perusal of her statement reveals that Smt. Kala Devi, PW-4, had stated in her examination-in-chief that her husband was getting Rs. 9,000/- per month as salary. 19. The learned Tribunal has taken the income of deceased as Rs. 9,000/- per month. To this effect, deposition of PW-4, the wife of deceased has been relied upon. Perusal of her statement reveals that Smt. Kala Devi, PW-4, had stated in her examination-in-chief that her husband was getting Rs. 9,000/- per month as salary. This part of the statement of claimant Smt. Kala Devi has not been challenged on behalf of the insurer. Learned counsel for the appellant/insurer has submitted that the statement of claimant cannot be taken as a gospel truth and there has to be additional material to prove the income of the deceased. According to him, in absence of any specific proof regarding income, the same should be assessed by taking into consideration minimum wages notified by the State Government at the relevant time. 20. The deceased was driving a heavy commercial vehicle and there is no dispute as to the fact that he was having a valid driving licence to drive such vehicle. Once it is established, certain amount of guess working in assessing the income will not be out of place, especially when the insurer has not challenged the version of the wife of the deceased. There cannot be any better person than the wife, who know about the income of her husband. It also cannot be ignored that insurer had also not questioned the owner when she stepped into the witness box with respect to the salary being paid to the deceased. Reliance can be placed on a decision of the Hon'ble Supreme Court in a case titled as Chandra alias Chanda alias Chandraram and Another vs. Mukesh Kumar Yadav and Others, (2022) 1 SCC 198 wherein it has been held that: “9. It is the specific case of the claimants that the deceased was possessing heavy vehicle driving licence and was earning Rs. 15,000/- per month. Possessing such licence and driving of heavy vehicle on the date of accident is proved from the evidence on record. 1 Though the wife of the deceased has categorically deposed as AW-1 that her husband Shivpal was earning Rs. 15,000/- per month, same was not considered only on the ground that salary certificate was not filed. The Tribunal has fixed the monthly income of the deceased by adopting minimum wage notified for the skilled labour in the year 2016. 1 Though the wife of the deceased has categorically deposed as AW-1 that her husband Shivpal was earning Rs. 15,000/- per month, same was not considered only on the ground that salary certificate was not filed. The Tribunal has fixed the monthly income of the deceased by adopting minimum wage notified for the skilled labour in the year 2016. In absence of salary certificate the minimum wage notification can be a yardstick but at the same time cannot be an absolute one to fix the income of the deceased. In absence of documentary evidence on record some amount of guesswork is required to be done. But at the same time the guesswork for assessing the income of the deceased should not be totally detached from reality. Merely because claimants were unable to produce documentary evidence to show the monthly income of Shivpal, same does not justify adoption of lowest tier of minimum wage while computing the income. There is no reason to discard the oral evidence of the wife of the deceased who has deposed that late Shivpal was earning around Rs. 15,000/- per month.” 21. Thus, the assessment of Rs. 9,000/- per month as income of the deceased cannot be said to be unreasonable. The findings of learned tribunal to this effect are upheld. 22. The accident had taken place on 09.02.2010. The Employees Compensation amended Act 45 of 2009 came into force w.e.f. 18.01.2010, whereby explanation-II to Section 4 of the Employees Compensation Act, 1923 was deleted. Hence, the provisions of Section 4 as it stood after coming into force the amending Act 45 of 2009 will apply to the case in hand. Meaning thereby, the capping of monthly wages of an employee at Rs. 4,000/- provided before coming into force of amending Act 45 of 2009 will not be applicable. 23. Deceased Tara Chand was 50 years of age at the time of his death. The findings to this effect rendered by learned tribunal have not been challenged. That being so, the factor of 153.09 as per Schedule-IV of Employees Compensation Act will apply. Thus, by taking amount equal to 50% of monthly wages of deceased employee i.e. 9000/2 = Rs. 4,500/- and multiplied by factor 153.09, the claimants are held entitled to compensation of Rs. 6,88,905/- (Rs. 4,500 x 153.09). That being so, the factor of 153.09 as per Schedule-IV of Employees Compensation Act will apply. Thus, by taking amount equal to 50% of monthly wages of deceased employee i.e. 9000/2 = Rs. 4,500/- and multiplied by factor 153.09, the claimants are held entitled to compensation of Rs. 6,88,905/- (Rs. 4,500 x 153.09). Further the claimants are also held entitled to simple interest @12% per annum on the aforementioned calculated amount from the date of accident i.e. 09.02.2010 till its deposit in Court or payment to the claimants whichever is earlier. The award to above extent shall be satisfied by the insurer. 24. There is nothing on record which may justify the delay on the part of the owner to accept liability and to deposit the compensation amount as provisional payment under sub-section (2) of Section 4A of the Employees Compensation Act, therefore, the owner is saddled with liability to pay to the claimants penalty to the tune of 50% of the amount awarded hereinabove. 25. The impugned award is modified to the extent as detailed above. The appeal is accordingly disposed of. All pending applications also stand disposed of.