JUDGMENT : Satyen Vaidya, J. By way of instant appeal, appellant (hereinafter referred to as the Insurer) has assailed award dated 27.10.2016, passed by learned Motor Accident Claims Tribunal, Shimla, H.P.( for short ‘the tribunal’) in MAC No. 5- S/2 of 2015, whereby respondents No. 1 to 6 (hereinafter referred to as claimants) have been awarded compensation to the tune of Rs. 23,75,000/- with interest @ 7.5 % per annum on the award amount from the date of filing of petition till realization. 2. The claimants being legal heirs and dependents of deceased Zakir Husain filed a petition under Section 166 of the Motor Vehicles Act, for compensation on account of death of Sh. Zakir Hussain, who had died in a road accident involving vehicle No.DL-1GC-2621. 3. It was the case of the claimants that on 1.8.2014 Sh. Zakir Hussain was travelling in aforesaid vehicle alongwith his goods. At about 9:00 PM, the said vehicle got involved in an accident due to rash and negligent driving of respondent No. 8 (hereinafter to be referred to as ‘driver’). The vehicle involved in the accident was stated to be owned by respondent No. 7 (hereinafter to be referred as ‘owner’) and insured by the insurer (appellant herein) 4. The owner and driver filed their joint replies. It was denied that the accident was caused due to rash and negligent driving of the driver. It was disclosed that the vehicle at the time of accident was insured by the insurer. The driver of the vehicle was also stated to be holding a valid and effective driving license. 5. The insurer filed its reply and did not deny to be under a contract of insurance with the owner in respect of vehicle involved in the accident. It was, however, alleged by the insurer that the vehicle was being driven in violation of the terms of the policy as also the Motor Vehicles Act and Rules framed thereunder. The specific defence of the insurer was that it was not liable to indemnify the owner as the deceased Sh. Zakir Hussain was travelling in the vehicle as gratuitous passenger. The objection as to the validity of driving license of the driver was also taken. 6. Learned Tribunal framed the following issues:- (1). Whether Sh. The specific defence of the insurer was that it was not liable to indemnify the owner as the deceased Sh. Zakir Hussain was travelling in the vehicle as gratuitous passenger. The objection as to the validity of driving license of the driver was also taken. 6. Learned Tribunal framed the following issues:- (1). Whether Sh. Zakir Hussain died in a road side accident on 01.08.2014 at about 9.00 P.M. involving vehicle No. DL-1GC-2621 driven by respondent No.2 in a rash and negligent manner? OPP (2) If issue No.1 is proved in affirmative, for what amount of compensation the claimants are entitled and from whom? OPP (3) Whether the claim petition is not maintainable? OPRs (4) Whether the claimants have not approached to this tribunal with clean hands, if so, its effect? OPR-1 and 2 (5) Whether the deceased was travelling in the vehicle in question as gratuitous passenger, if so, its effect? OPR-3 (6) Whether the vehicle in question was being permitted to ply in violation of the terms and conditions of the insurance policy, if so, its effect? OPR-3. (7) Whether the driver of the offending vehicle was not holding valid and effective driving licence at the time of accident, if so, its effect? OPR-3 (8) Relief. Issues No 1 and 2 were decided in affirmative. All other issues were decided in negative. Accordingly, the petition was allowed awarding compensation in favour of the claimants, as noticed above. 7. The insurer has assailed the findings of learned Tribunal. Exception has been taken to the findings of learned tribunal in so far as the deceased was held to be occupant of vehicle in the capacity of owner of goods. The quantum of compensation awarded to the claimants has also been challenged. It has been contended that the learned Tribunal has assessed the monthly income of deceased Sh. Zakir Hussain at Rs. 10,000/- without any evidence to that effect. According to the insurer, learned Tribunal should have been guided by the minimum wages payable under the Minimum Wages Act at the relevant time. Further, the award of loss of future prospects @ 50% has also been assailed as being excessive. In addition, assessment of compensation under the heads ‘loss of estate’, ‘loss of love and affection’ and ‘loss of consortium @ Rs. 1, 00,000/- each’ has been said to be not in conformity with the settled legal position. Further, the award of loss of future prospects @ 50% has also been assailed as being excessive. In addition, assessment of compensation under the heads ‘loss of estate’, ‘loss of love and affection’ and ‘loss of consortium @ Rs. 1, 00,000/- each’ has been said to be not in conformity with the settled legal position. To similar effect, the objection has been raised as to grant of Rs. 50,000/- as compensation towards burial charges. 8. The insurer has also raised a new ground of appeal that there was no subsisting contract of insurance between the insurer and owner. The owner had not paid any premium. Admittedly such a plea had not been raised by the insurer before learned tribunal. In order to prepare factual foundation in pleadings and also to prove their contention, the insurer has filed applications under Order 6 Rule 17 of the Code of Civil Procedure, (for short ‘CPC’), seeking leave to amend the reply and another application under Order 41 Rule 27 of the Code, to lead additional evidence. 9. Noticeably, for amendment of reply, two separate applications have been filed by insurer. One of the applications has been numbered as CMP No. 1366/2019 and the other as CMP No. 5587 of 2018. CMP No. 1366 of 2019 is prior in time having been filed on 22.03.2017, whereas CMP No. 5587 of 2018 was filed on 23.05.2018. Thus, only subsequent application i.e. CMP 5587 of 2018 will be considered and the prior application CMP 1366 of 2019 having being rendered infructuous after filing of subsequent application on same cause shall stand disposed of as such. 10. The other application CMP No. 1367 of 2019 has been filed by the insurer under Order 41 Rule 27 of CPC seeking leave to lead additional evidence. Yet, another application has been filed by insurer as CMP No. 4120 of 2019 seeking leave to file additional documents as a supplement to the application CMP No. 1367 of 2019. 11. All the above applications are being taken for decision alongwith the main appeal in order to avoid repetition of narration of facts. 12. I have heard learned counsel for the parties and have also gone through the record of the case carefully. 13. 11. All the above applications are being taken for decision alongwith the main appeal in order to avoid repetition of narration of facts. 12. I have heard learned counsel for the parties and have also gone through the record of the case carefully. 13. Learned Senior Counsel for insurer has vehemently contended that after the passing of award by learned Tribunal, the matter was got investigated by the insurer and it was found that there was no policy of insurance qua vehicle No. DL-1GC-2621. As per him, the owner had not paid any premium to the insurer for the said vehicle. He also submitted that on further verifications, it has transpired that the policy of insurance allegedly claimed by the owner to be of vehicle No. DL-1GC-2621, was in fact issued for some other vehicle owned by one Mr. P. Nagraj. 14. In order to consider the insurer’s prayers for amendment of reply and to lead additional evidence it will be necessary to revert to the records of learned Tribunal. During the entire proceedings before the learned Tribunal the insurer had not denied the existence of insurance policy in respect of vehicle No. DL-1GC-2621, a copy of which was tendered by the owner in his evidence. Hence, the Tribunal had rightly not framed any issue as to the existence or validly of policy of insurance. Accordingly, the award came to be passed whereby the insurer has been saddled with liability to satisfy the award. 15. The amendment sought by the insurer by way of CMP No. 5587 of 2018 is as under:- "1 (a) That there is no contract of insurance between the respondent No.3 and respondent No.1 Kamal Kumar as the offending vehicle was at no point of time insured with the respondent No.3. "That the contents of para-15 of the petition are wrong and hence denied vehemently. There is no contract of insurance between the respondent No.3 and respondent No. 1 Kumar Kamal as the offending vehicle was at no point of time insured with the respondent No. 3.” 16. It is alleged by the insurer that it was not aware about the correct factual position before passing of award and thus, the amendment was being sought at the very first opportunity after acquiring the knowledge of alleged fraud being committed by the owner. 17. It is alleged by the insurer that it was not aware about the correct factual position before passing of award and thus, the amendment was being sought at the very first opportunity after acquiring the knowledge of alleged fraud being committed by the owner. 17. The proviso to Order 6 Rule 17 of CPC, prohibits the amendment to the pleadings, in case, such amendment was sought after commencement of trial unless the party seeking amendment satisfies the Court that he could not seek such amendment before commencement of trial despite due diligence. 18. In the case at hand, the party seeking amendment is a public sector undertaking having benefit of being advised on each and every technical or legal aspect of the matter. In application for amendment, it has been stated that despite due diligence, the insurer had not been able to take the defence as is now sought to be taken. 19. The inability of a party to seek amendment in pleading before commencement of trial should be proved despite exercise of due diligence. The term “due diligence” in above context cannot be construed to be mere formal expression of words. It has to be established by the party seeking amendment that meaningfully due diligence had been exercised by it. However, in the case at hand the reply was filed on behalf of the insurer before learned Tribunal after verification of its contents by the Senior Divisional Manager, Divisional Office, Shimla. Now as per the new stand of insurer the contents of reply filed by it before learned Tribunal were factually incorrect, meaning thereby that the said senior officer had not taken due care to verify the facts before signing and verifying the contents of the reply. Hence, the exercise of due diligence at the end of insurer was seemingly missing. That being so, the insurer does not qualify the test prescribed by proviso to Order 6 Rule 17 of the CPC. 20. The insurer has claimed that it has got the matter investigated through an investigator. An FIR has also been registered and the investigation is going on. Thus, there is no indefeasible or conclusive proof that the stand now taken by insurer is correct and the one earlier taken was not so. 20. The insurer has claimed that it has got the matter investigated through an investigator. An FIR has also been registered and the investigation is going on. Thus, there is no indefeasible or conclusive proof that the stand now taken by insurer is correct and the one earlier taken was not so. The insurer can get its score settled with the owner by way of independent proceedings and in case the insurer succeeds in proving its case it may claim the amount from the owner in accordance with law. The insurer will have liberty to make such claim in accordance with law. 21. Even otherwise, the fact sought to be incorporated by way of amendment will lead to a de-novo trial as to questions of fact. The claim of the claimants cannot be defeated. It can be noticed that the accident had taken place on 01.10.2014. The claimants have already been fighting the legal battle for more than ten years. The dispute, if any, as is alleged to have arisen between the insurer and the owner cannot be used to deny the claimants their dues keeping in view the beneficial nature of legislation. In this view of the matter also, the amendment sought to be made cannot be said to be necessary for adjudication of real matter in controversy i.e. the entitlement of claimants to compensation. 22. Thus, the application for amendment of reply filed by the insurer is dismissed. 23. The insurer by way of additional evidence intends to prove the fact that the owner had allegedly committed cheating and fraud and also to prove the fact that the policy which is claimed to have been issued for vehicle No. DL-1GC-2621 by owner, in fact, was issued for some other vehicle belonging to Mr. P. Nagraj. 24. Since, there is no such pleadings of insurer on record, the proof of facts not pleaded cannot be allowed. The amendment as sought by the insurer has already been declined. 25. The insurer has not been able to satisfy the requirements of order 41 rule 27 of the Code. The absence of due diligence at the end of insurer already has been found to be missing. The amendment as sought by the insurer has already been declined. 25. The insurer has not been able to satisfy the requirements of order 41 rule 27 of the Code. The absence of due diligence at the end of insurer already has been found to be missing. Keeping in view the nature of instant proceedings as also the right of insurer to seek its claims, if any, from the owner separately, this court does not find the evidence sought to be produced by insurer necessary for adjudication of this appeal. 26. Accordingly, CMPs No. 1367/2019 and 4120 of 2019 are also dismissed. 27. As regards the assessment of income of deceased the evidence on record sufficiently suggests that the occupation of deceased was that of a merchant dealing with the sale of apple crop in the market. The learned Tribunal has assessed the income of deceased at Rs. 10,000/- per month. 28. At the time of hearing of instant appeal, learned Senior Counsel for the appellant submitted that the learned Tribunal should have made the assessment of income of deceased on the basis of minimum wages payable during the relevant period as the income of the deceased was not documented anywhere. He has placed on record notification dated 24.05.2014 issued by the Government of H.P., detailing the minimum wages applicable to the different categories of workmen in the year 2014. Learned counsel for the appellant placed reliance on the judgment passed by Hon’ble Supreme Court on 17.10.2022 in Civil Appeal No. 7593 of 2022, titled as Manusha Sreekumar and Ors. Vs. The United India Insurance Co. Ltd. (2022) 17 SCC 321 and judgment dated 07.02.2025, passed by Hon’ble ‘Supreme Court in Civil Appeal No. 2209 of 2025, titled as Jitendra Vs. Sadiya and others , 2025 SCC Online SC 261 to assert that when the definite proof as to income of a person is lacking the Tribunal can be guided by the rates of wages prescribed under Minimum Wages Act. 29. The proposition that in absence of documented income of a victim of motor vehicle accident, the wages fixed under Minimum Wages Act and some guess work can act as yardstick to determine such income, is not disputed, however, its application depends on facts of each case. In the case at hand, the evidence was led that the deceased was earning around Rs. 15,000/- per month. In the case at hand, the evidence was led that the deceased was earning around Rs. 15,000/- per month. The wife of the deceased had also made deposition to such effect. There cannot be any better person than wife to know about the income of her husband, as she runs the household from the money provided to her by the husband. In the instant case, the deceased had not less than six dependents and it cannot be presumed that he could run his household with a lesser amount than Rs. 10,000/- per month. 30. Even from the perusal of the minimum wages of different categories as shown in the notification provided by learned counsel for insurer, it is found that the highest wages per day were payable to the categories like Instructors was @ Rs. 350/- per day, to the Junior Engineers and Draftsman etc.@ Rs. 380 per day and to Hydrogeologist @ Rs. 440 per day. Though, the income of the deceased could not be compared with the categories of the workers detailed in the aforesaid notification, yet in view of the established fact that the deceased was working as merchant, his category definitely could not be equated with the unskilled or semi-skilled workers. In case certain categories of workers were being paid minimum wages @ Rs. 350/- or Rs. 380/- per day, the assessment of Rs. 10,000/- per month in the case of deceased Sh. Zakir Hussain cannot be said to be unreasonable. Another fact that cannot be lost sight of while making a guess work in such like matter is that a merchant or business man in ordinary circumstances have to work for long hours during the day unlike the workmen who are entitled to fixed minimum wages for specified number of hours. The workmen also become entitled to extra remuneration for working overtime. 31. Thus, there is no material on which this Court may take a view different than the view taken by learned Tribunal with respect to the monthly earning of deceased. 32. The other contention of the insurer that the Tribunal has wrongly awarded loss of future prospects @ 50% needs to be upheld. Admittedly, the deceased was not employed in any permanent establishment, therefore, his loss of future prospects were to be assessed @ 40% in terms of the judgment passed by Hon’ble Supreme Court in National Insurance Company Ltd. Vs. The other contention of the insurer that the Tribunal has wrongly awarded loss of future prospects @ 50% needs to be upheld. Admittedly, the deceased was not employed in any permanent establishment, therefore, his loss of future prospects were to be assessed @ 40% in terms of the judgment passed by Hon’ble Supreme Court in National Insurance Company Ltd. Vs. Pranay Sethi , (2017) 16 SCC 680 . 33. Further, the award of amounts under the heads loss of estate, loss of love and affection, loss of consortium @ Rs. 1, 00,000/- each also needs to be interfered with in order to bring these in terms of judgment passed in Pranay Sethi’s (supra) and Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram and others , (2018) 18 SCC 130 . 34. Thus, the compensation payable to the claimants can be quantified as under: - Loss of dependency Monthly Income Rs.10,000/- Add 40% (Rs. 4000/-) towards Loss of future prospects Rs.10,000+Rs.4000=Rs 14,000 Less 1/4th on personal expenses Rs.14,000– Rs. 3500=Rs 10,500 Multiplier 15 Total loss of dependency Rs.10500X12X15=Rs18,90,000/- Loss of Consortium: Rs.40,000X6=Rs. 2,40,000/- Loss of estate Rs. 15,000/- Burial Charges Rs. 15,000/- Total Rs. 21,60,000/- 35. The claimants shall also be entitled to interest @ 7.5% per annum on the entire award amount from the date of petition till actual realization. 36. The insurer has not been able to prove on record that the deceased was travelling as gratuitous passenger in the vehicle. 37. In light of above discussion, the appeal is partly accepted and the award dated 27.10.2016, passed by learned Motor Accident Claims Tribunal, Shimla, H.P. in MAC No. 5-S/2 of 2015, is modified to the extent, as detailed above. The apportionment of compensation amount between the claimants shall be in the same ratio as ordered by learned Tribunal. 38. The appeal is, accordingly disposed of, so also the pending miscellaneous application(s), if any. CMPMO No. 255 of 2018 39. By way of this petition, the insurer has assailed the order dated 20.03.2018, passed by learned Motor Accident Claims Tribunal-II, Shimla, in MACP No. 17-S/2 of 2015, whereby the application of the insurer to amend the reply has been dismissed. 40. CMPMO No. 255 of 2018 39. By way of this petition, the insurer has assailed the order dated 20.03.2018, passed by learned Motor Accident Claims Tribunal-II, Shimla, in MACP No. 17-S/2 of 2015, whereby the application of the insurer to amend the reply has been dismissed. 40. For adjudication of this petition, it is relevant to notice that the cause for filing MAC petition No. 17-S/2 of 2015 has arisen from the same accident involving same vehicle as is the subject matter of FAO No. 37 of 2019 decided hereinabove Obviously, the insurer is common in both the cases. 41. The reasons, on which the application (CMP No. 5587 of 2018) for amendment of reply had been filed by the insurer in FAO No. 37 of 2019, the same reasons weighed with insurer for filing application for amendment of reply in MACP No. 17-S/2 of 2015. The only difference is that in FAO No. 37 of 2019, the application was moved at appellate stage and in MACP No. 17-S/2 of 2015, the application was moved before the decision by learned Motor Accident Claims Tribunal. However, the result cannot be different. The petition for amending the reply deserves to be dismissed in MACP No. 17-S/2 of 2015 for the same reasons as have been assigned by this Court for dismissing the application CMP No. 5587 of 2018 in FAO No. 37 of 2019. The said reasons will apply mutatis mutandis for dismissal of the instant petition. In addition to the reasons for which the application of the insurer for amendment of reply has been dismissed by learned Motor Accident Claims Tribunal-II, in MACP No. 17-S/2 of 2015, the reasons assigned by this Court for dismissing CMP No. 5587 of 2018 in FAO No. 37 of 2019 shall also be read into the order. 42. The petition, is accordingly, disposed of, so also the pending miscellaneous application(s), if any.