JUDGMENT : RADHAKISHAN AGRAWAL, J. 1. This appeal is by the claimants against the award dated 13.05.2016 passed by the Motor Accident Claims Tribunal, Balod, C.G. in Claim Case No. 74/2015, awarding total compensation of Rs.8,25,000/- with interest @ 8% per annum from the date of application till its realization while fastening liability on the non-applicant No. 1/driver-owner of the offending vehicle. 2. Respondent No. 1/Driver-owner of offending vehicle has also filed cross objection under Order 41 Rule 22 of CPC challenging quantum of compensation and liability part. 3. As per averments made in the claim petition, on 02.03.2015, deceased-Shivcharan Thakur, aged about 38 years, earning Rs.10,000/- per month by working as driver and also doing labour work, died in the motor vehicular accident caused due to rash and negligent driving of Tractor bearing registration No. CG24-E-3243 attached with Trolley bearing registration No. CG24-E-3129 (hereinafter referred as ‘offending vehicle’) by non-applicant no. 1/driver-owner of offending vehicle- Tikendra Singh Bhuarya. At the time of accident, the offending vehicle was insured with non-applicant no. 2/TATA A.I.G. General Insurance Company Ltd. 4. On claim petition being filed by the claimants under Section 166 of the Motor Vehicles Act seeking compensation to the tune of Rs.32,10,000/- the Tribunal, considering the evidence led by both the parties, passed an award as mentioned above. 5. Learned counsel for the appellants/claimants submits that the Tribunal has wrongly assessed the monthly income of the deceased at Rs.5,000/- per month, whereas it should be Rs.10,000/- per month looking to the nature of work of the deceased. He further submits that the Tribunal has not awarded any amount towards future prospects and that amount awarded by the Tribunal towards conventional heads is also on lower side, which needs to be enhanced suitably. Reliance has been placed on the decisions of Hon’ble Supreme Court in the matters of National Insurance Company Limited vs. Pranay Sethi and Others, (2017) 16 SCC 680 and Magma General Insurance Company Limited vs. Nanu Ram @ Chuhru Ram and Others, (2018) 18 SCC 130 . Lastly, he submits that at the time of accident, the offending vehicle was insured with non-applicant No. 2/Insurance Company under comprehensive policy, then in the given facts and circumstances of the case, order of pay and recover may be passed in this case. Lastly, he submits that at the time of accident, the offending vehicle was insured with non-applicant No. 2/Insurance Company under comprehensive policy, then in the given facts and circumstances of the case, order of pay and recover may be passed in this case. Reliance has also been placed on the decision of Hon’ble Supreme Court in the matter of Shivaraj vs. Rajendra and Another, 2018 (10) SCC 432 . 6. Learned counsel for the respondent No. 1/owner of the offending vehicle, in appeal as well as cross objection, submits that at the time of accident, the deceased-Shivcharan Thakur was driving the offending vehicle in an intoxicated condition and he fell down while demounting from the offending vehicle, as a result of which, he sustained injury over his head and died during treatment in the hospital. He further submits that at the time of accident, offending vehicle was insured with non-applicant No. 2/Insurance Company and the Insurance Company has not proved any breach of policy conditions, therefore, Insurance Company ought to have been held liable to pay compensation to the claimants. He further submits the amount of compensation awarded by the learned Claims Tribunal is also on higher side and needs to be reduced suitably. Therefore, he urged that the cross-objection filed by the owner-driver of the offending vehicle may be allowed and the owner-driver of the offending vehicle may be absolved from its liability. 7. Learned counsel for the Insurance Company supports the impugned award and submits that at the time of accident, although the offending vehicle was insured with the Insurance Company, but at the time of accident, deceased was sitting on the mudguard of the offending vehicle, therefore, the risk of deceased is not covered under the Insurance policy (Ex.D-1). In that view of the matter, the Tribunal has rightly exonerated the Insurance Company from its liability and even order of pay and recover cannot be ordered in this case. 8. Heard learned counsel for the parties and perused the material available on record. 9. Now, the question that arises for consideration as to whether the learned Claims Tribunal was justified in fixing the liability upon the driver-owner of the offending vehicle while exonerating the Insurance Company from its liability? 10. In order to appreciate the arguments, I shall deal with the evidence led by the parties. 9. Now, the question that arises for consideration as to whether the learned Claims Tribunal was justified in fixing the liability upon the driver-owner of the offending vehicle while exonerating the Insurance Company from its liability? 10. In order to appreciate the arguments, I shall deal with the evidence led by the parties. AW-1 wife of the deceased has stated in her deposition that due to rash and negligent driving by driver of offending vehicle, the accident occurred, as a result of which, deceased sustained head injury and died during treatment in the hospital. She has also filed the copy of documents Exs.P-1 final report, Ex.P-2 FIR, Ex.P-3 merg intimation, Ex.4 inquest report, Ex.P-5 postmortem report, Ex.P-6 seziure memo, Ex.P-7 arrest memo, Ex.P-8 vehicle recovery report, Ex.P-9 spot map, Ex.P-10 treatment slip of Arjunda Hospital and admission ticket of Durg Hospital Ex.P-11. However, in cross-examination, she has admitted that she was not present at the place of accident or at village Arjunda. Further, AW-2 V.S. Netam, ASI, has stated in his deposition that after investigation, he seized the offending vehicle and its documents, prepared the seizure memo Ex.P-6 and spot map Ex.P-9 and also arrested the non-applicant No. 1/Tikendra Singh Bhuarya. He has also stated that after investigation, he has filed the challan against the driver of offending vehicle/non-applicant No. 1 and found that accident occurred due to rash and negligent driving by driver of offending vehicle/non-applicant No. 1. In cross-examination, he has admitted that immediately after the accident, no one came to the police station and informed about the accident. He has also admitted that he has seized the bed head ticket vide Ex.P-17, wherein it has been mentioned that smell of alcohol was coming from the deceased’s mouth. In Para 6, he has also admitted that at the time of accident, deceased was sitting on the mudguard of the offending vehicle. 11. He has also admitted that he has seized the bed head ticket vide Ex.P-17, wherein it has been mentioned that smell of alcohol was coming from the deceased’s mouth. In Para 6, he has also admitted that at the time of accident, deceased was sitting on the mudguard of the offending vehicle. 11. On the contrary, NAW-1 Tikendra Singh Bhuarya, driver of the offending vehicle has stated in his deposition that on the date of accident at 4:00 pm, he had given the offending vehicle to deceased for driving and at that time, he was in normal condition, but at about 6:00 pm, when he saw deceased at Arjunda bus stand, he (deceased) was not in a position to drive the offending vehicle as he had consumed alcohol excessively, upon which, he told him to stop the offending vehicle and get down from it and while he was demounting from the offending vehicle, he lost his control and fell down from the offending vehicle. Thereafter, he called the ambulance and took the deceased to Arjunda Hospital and after that, he took the offending vehicle to Arjunda Police Station and parked it. However, in cross-examination, he has admitted that police has filed challan against him in Court for causing the accident, but he has not filed any counter complaint for his false implication. 12. As against the deposition of above witness, NAW(2)-1 Subhayu Majumdar, Senior Claim Analyst, has admitted in his deposition that on the date of accident, offending vehicle was insured with the Insurance Company under comprehensive policy vide Ex.D-1 and the sitting capacity of the offending vehicle is only for one person i.e. for driver. He has also admitted that at the time of accident, the deceased was sitting on the mudguard of the offending vehicle, therefore, in absence of any such condition authorizing him to sit on the mudguard of the offending vehicle, it is a breach of policy conditions. He has also admitted that as per Ex.D-1 (Insurance Policy), the Insurance Company has obtained premium only for owner-cum-driver of the offending vehicle. 13. He has also admitted that as per Ex.D-1 (Insurance Policy), the Insurance Company has obtained premium only for owner-cum-driver of the offending vehicle. 13. Thus, from perusal of the overall evidence available on record, it is established beyond doubt that at the time of accident, deceased-Shivcharan Thakur was found to be sitting on the mudguard of the offending vehicle and due to rash and negligent driving of the driver of the offending vehicle/non-applicant No. 1, deceased- Shivcharan Thakur fell down from the offending vehicle, which led to his death during treatment in the hospital. Moreover, during investigation, offence under Section 304-A of IPC has been registered by the Police against the driver of the offending vehicle/non-applicant No. 1, but no counter report with respect to his false implication has been lodged by him to either Police Superintendent or any Higher Officials. Further, medical slip (OPD) Ex.P-10 issued by CHC Arjunda shows that unknown person was brought for treatment and from there, deceased was referred to Govt. District Hospital Durg, as is evident from Ex.P-17. Had the non-applicant No. 1/Tikendra Singh Bhuarya admitted the deceased in hospital, then certainly he would have mentioned the name of deceased in the medical slip Ex.P-10, but the same is not mentioned in the medical slip Ex.P-10, meaning thereby, non-applicant No. 1 had not got the deceased admitted in hospital. The learned claims Tribunal, after appreciation of the evidence and material available on record, in its impugned judgment, has observed that the driver of the offending vehicle/non-applicant No. 1 allowed the deceased-Shivcharan Thakur in an intoxicated condition to sit over the mudguard of the offending vehicle and due to the rash and negligent driving by driver of offending vehicle/non-applicant No. 1, deceased- Shivcharan fell down, sustained injury over his head and during treatment in the hospital, he died and accordingly, non-applicant No. 1 violated the policy conditions on the date of incident, therefore, the Tribunal fastened the liability upon the driver-owner of the offending vehicle. In that view of the matter, I am of the view that the Tribunal is justified in fastening the liability upon the driver-owner of the offending vehicle/non-applicant No. 1 and the finding recorded by the Claims Tribunal, in its impugned judgment, is a finding of fact based on the evidence and material available on record, it is neither perverse nor contrary to the record. 14. 14. As regards the compensation, though the claimants in the claim petition have pleaded that the deceased was earning Rs.10,000/- per month by working as driver and also doing labour work, but no documentary evidence in support thereof has been adduced by the claimants to substantiate the said pleading. However, the learned Tribunal, after considering the evidence available on record, assessed the monthly income of the deceased at Rs.5,000/- per month, which in the considered opinion of this Court is just and proper and needs no interference by this Court. However, the Tribunal has erred in not granting any amount towards future prospects, which in the considered opinion of this Court is not just and proper. The Hon’ble Supreme Court in the matter of Pranay Sethi (supra) has considered 40% towards loss of future prospects for the self-employed persons who are below 40 years. Therefore, in the present case, looking to the age of the deceased i.e. 38 years, as is evident from inquest report (Ex.P-4), PM report (Ex.P-5) and the statement of AW-1 Devla Bai, wife of deceased, the applicable percentage towards future prospects would be 40%. Further, taking the guidance from the decisions of the Hon’ble Supreme Court in Sarla Verma and Others vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , Pranay Sethi & Magma General Insurance Co. Ltd. (supra), this Court re-computes the compensation in the following manner: S. No. Heads Calculation (in rupees) 01. Income of the deceased @ Rs. 5,000/- per month (as assessed by the Tribunal) Rs. 60,000/- per annum 02. 40% of (i) above to be added towards future prospects. Rs. 24,000/- [Rs. 60,000/- + Rs. 24,000/-] = Rs. 84,000/- 03. 1/3 deduction towards personal and living expenses of the deceased Rs. 28,000/- [Rs. 84,000/- - Rs. 28,000/-] = Rs. 56,000/- 04. Multiplier of 15 to be applied Rs. 56,000/- x 15 = Rs. 8,40,000/- 05. Towards loss of estate and funeral expenses Rs. 30,000/- 06. Towards loss of consortium to claimants No. 1 to 3 @ Rs. 40,000/- each Rs. 1,20,000/- Total Compensation Rs. 9,90,000/- Since the Tribunal has already awarded Rs.8,25,000/- after deducting the same from Rs.9,90,000/-, the appellants are entitled for additional compensation of Rs.1,65,000/-, which shall carry interest as awarded by the Tribunal. However, rest of the conditions made by the Tribunal in the impugned award shall remain intact. 15. 40,000/- each Rs. 1,20,000/- Total Compensation Rs. 9,90,000/- Since the Tribunal has already awarded Rs.8,25,000/- after deducting the same from Rs.9,90,000/-, the appellants are entitled for additional compensation of Rs.1,65,000/-, which shall carry interest as awarded by the Tribunal. However, rest of the conditions made by the Tribunal in the impugned award shall remain intact. 15. As regards the payment of compensation, admittedly, the offending vehicle was insured with the non-applicant No. 2/Insurance Company under comprehensive policy (Ex.D-1). However, taking into consideration the fact that the Motor Vehicles Act is a beneficial legislation and the provisions of the Act having been enacted for the benefit of the victims of an accident, this Court is of the opinion that in the larger interest of the claimants and in order to achieve substantial justice, the view taken by the Hon’ble Supreme Court, in the matter of Shivaraj (supra) reiterating the principles in the case of Manuara Khatun and Others vs. Rajesh Kumar Singh and Others, (2017) 4 SCC 796 , whereby the Hon’ble Supreme Court has applied the principle of pay and recover, which needs to be applied in this case. It would be relevant at this juncture to refer to paragraphs-10, 11 and 14 of the case of Shivaraj (supra), which is reproduced herein-under: “10. The High Court, however, found in favour of respondent No. 2 (insurer) that the appellant travelled in the tractor as a passenger which was in breach of the policy condition, for the tractor was insured for agriculture purposes and not for carrying goods. The evidence on record unambiguously pointed out that neither was any trailer insured nor was any trailer attached to the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person namely the driver. As a result, the Insurance Company (respondent No. 2) was not liable for the loss or injuries suffered by the appellant or to indemnify the owner of the tractor. That conclusion reached by the High Court, in our opinion, is unexceptionable in the fact situation of the present case. 11. As a result, the Insurance Company (respondent No. 2) was not liable for the loss or injuries suffered by the appellant or to indemnify the owner of the tractor. That conclusion reached by the High Court, in our opinion, is unexceptionable in the fact situation of the present case. 11. At the same time, however, in the facts of the present case the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant (appellant) with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. vs. Swarna Singh and Others, Mangla Ram vs. Oriental Insurance Co. Ltd. and Rani and Others vs. National Insurance Co. Ltd. and Others and including Manuara Khatun and Others vs. Rajesh Kumar Singh and Others. In other words, the High Court should have partly allowed the appeal preferred by the respondent No. 2. The appellant may, therefore, succeed in getting relief of direction to respondent No. 2 Insurance Company to pay the compensation amount to the appellant with liberty to recover the same from the tractor owner (respondent No. 1). xxx xxx xxx xxx xxx 14. In view of the above, the appeals are partly allowed to the extent of directing respondent No. 2 Oriental Insurance Company Ltd. to pay the compensation amount determined by the Tribunal and affirmed by the High Court to the appellant in the first place and with liberty to recover the same from the owner of the offending tractor, Respondent No. 1 in accordance with law.” 16. In view of above and considering the facts and circumstance of the case, the fact that the offending vehicle was duly insured with non-applicant no. 2/Insurance Company at the relevant time vide Ex.D-1 (Insurance Policy) and keeping in view the benevolent provisions of the Act in the light of the decision of Hon’ble Supreme court in Shivaraj (supra), this Court is of the opinion that the ends of justice would be served if the Insurance Company is directed to pay the entire amount of compensation to the claimants first and then recover the same from the driver-owner of the offending vehicle in question, in accordance with law. Ordered accordingly. 17. Ordered accordingly. 17. In the result, the appeal filed by the claimants are allowed in part with modification in the impugned award to the above extent and rest of the conditions of the impugned award shall remain intact, whereas the cross-objection filed by the owner-driver of the offending vehicle/non-applicant No. 1 being without any substance is liable to be and is hereby dismissed.