IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.2 of 2008 1. GEETA DEVI, Wife of Umesh Dwiwedi. 2. Umesh Dwiwedi, Son of Mahendra Dwiwedi. Both are resident of village and P.O. Mahmada, P.S. – Baruraj, District – Muzaffarpur. (Serial No. 1 and 2 are claimant nos. 1 and 2 respectively) ….. Appellants. Versus 1. MAHADEO TIWARI, (owner of the motor vehicle) Resident of village – Sariya, P.S. Sahebganj, District – Muzaffarpur. (Opposite Party No. 1) …… Respondent. 2. Divisional Manager, United India Assurance Company Ltd. Suraksha Bhawan, Akharaghat, Muzaffarpur. (Opposite Party No. 2) ….. Respondent. ----------- For the Appellants :- Mr. Ajay Kumar, Advocate. Mr. Mukesh Pd. Singh, Advocate. For the Respondent No. 2 :- Mr. Durgesh Kumar Singh, Advocate. 12 24.08.2010 This miscellaneous appeal is directed against the order dated 06.10.2007 passed by Sri D.N. Pandey, 5th Additional District Judge – cum – Motor Accident Calim Tribunal, Muzaffapur by which the claimant has been ordered for entitlement of compensation of Rs.1,04,500/- with interest @ 6% from the date of the institution of the claim with regard to the death of one Vivek Chandra Dwivedi who died in an accident by the tractor. Learned counsel for the appellants, however, challenged the quantum of compensation and has asserted that the victim was an employee as Munshi / Dandidar in a - 2 - wholesale grain shop in the name and style “Shree Laxmi Bhandar” and engaged for doing work in the said wholesale grain shop and was getting Rs.2,000/- per month as wage and Rs.30/- as Khoraki and the employer gave a certificate which was filed and proved as Ext.-1 and the Tribunal did not hold that deceased was not an earning member and he was 20 years as per the transfer certificate and the statement of the father and hence the Tribunal ought to have computed his age in absence of any contrary material and finding recorded by the learned Tribunal with regard to the age on the basis of the opinion expressed by the doctor on the basis of post mortem examination is not legal and valid and has contended that income of the victim was shown to be Rs.2,000/- per month and Rs.30/- as Khoraki and hence the income of the victim shall be deemed to be Rs.30/- per day i.e. about Rs.900/- per month be added as a Khoraki and hence the income of the deceased was Rs.2,900/- per month and the income be assessed on this amount as come in the evidence and hence contended that a notional income is not permissible when it has come that the victim was earning. Learned counsel for the appellants, however, - 3 - contended that the learned lower court after well considering the age found in transfer certificate and the age stated by the father is all variable and the father is a person interested and hence the evidence of the person interested and the age is a factor that the benefit of the father and mother. The doctor who did the post mortem examination was an independent agency to have assessed without any ill motive at the time and hence the Tribunal has rightly assessed and appreciated the age as he considered the fluctuation of evidence regarding the age of the deceased as the post mortem examination suggest the age 13 years. The certificate filed mentions the age 19 years and 3 months at the time of alleged incidence and the father and mother has stated his age as 20-21 years. However, this age, i.e., 20-21 years is against the certificate filed by the prosecution itself and however the doctor’s report in the post mortem examination is 13 years, however, this variation of 13 years and 19 years is very much significant. The doctor who did the post mortem is the next point and has the work of assessing the age of person in post mortem examination. Learned counsel for the appellants has placed reliance upon decision reported in 2009 (3) PLJR 25 where the age - 4 - assessed by the doctor was 62 years and the certificate issued by Mukhiya regarding the age of the deceased was 52 years and in those facts and circumstances the court held that it feels reasonably assessed the age fixing it somewhere between two reports i.e. 52 to 62 years and hence that is almost appreciation of the evidence and hence the age can well be inferred in between 13 to 19 years. However, it is pertinent to mention that the doctor who assessed the age in post mortem examination though assesses the age proximately but that approximate age is by an expert. It is true it may not be accurate and this age has got bearing for deciding whether the victim at the time of alleged incident was really more than or less than 18 years if it is less than 18 years then his claim about working as an employee at the wage of @ Rs.2,000/- per month and Rs.30/- per day as Khoraki is not sustainable and falls to ground. However, with regard to the age, in view of the evidence of the parents since are beneficiaries is not at all reliable as is even contradictory to the documentary evidence and further the documentary evidence about the age 19 years also not acceptable as the person who gave the certificate is the - 5 - transfer certificate found not reliable by the trial court who does not inspire confidence as it was issued after the accident and hence even going in between 13 and 19 years the balance is still lies in favour of holding the age less than 18 years. The 13 years and 18 years are the age of transaction and can well be appreciated and the doctor may not have made mistake at this stage while assessing the age. However, Ext. 4 is the certified copy of the FIR which is the basis of the occurrence that while the informant coming along with the deceased and others on tractor then one of the boys of 5 - 6 years suddenly appeared before the tractor and then the driver of the break applied the tractor as a result of which the tractor turned turtle and the deceased died. However, the informant during trial turned hostile and did not support the prosecution case about the victims coming on the tractor but the case set up was that the victim while standing on the road met with the accident. However, since A.Ws. 1, 2, 3 and 4 supported the prosecution case about the accident and hence held that the accident took place by the running over the tractor and while the deceased was coming on tractor, however, taking into consideration the fact, the Tribunal believed the post mortem examination and - 6 - rejected the evidence of the father in view of not stating exact date and mother has stated the age of the son as 21 years and father has stated the age of the son 20 years and the certificate shown the age of the deceased as 19 years and 3 months. However, the three evidence relied upon by the prosecution is variable without any mention of the exact date of birth and hence itself evidence are also on estimation and the evidence of the doctor also shows his age as 13 years and hence now the question in this case is whether the deceased can be held to be of age more than 20 years. However, in view of the evidence when the father and mother are not stating the exact date of the birth their evidence has rightly been not reliable and since the certificate which was used after the date of occurrence also does not inspire confidence and hence the only evidence remain the age of the doctor who is an independent agency cannot be said to have been valid from more than 18 years cannot be varied holding the age of the victim as more than 18 years. However, it is held that the victim was not more than 18 years on the date of occurrence and however, evidence regarding the claim of the accused persons that he was working and getting Rs.2,000/- per month and Rs.30/- per day - 7 - as Khoraki without proper evidence and hence the evidence regarding the employment of victim does not inspire confidence. However, the point raised by the insurance company that the victim was a gratuitous passenger and the First Information Report itself mentions that the accident took place while the victim was coming on tractor. However, the plaintiff witness has come to prove that the accident took place while the victim was standing and the First Information Report is not a substantive piece of evidence. It is either for corroboration or contradiction and when the informant has not supported the case in the First Information Report and has taken a contradictory stand and moreover the insurance company has not filed any appeal to challenge these findings and even if he challenged the same in the appeal is not acceptable as neither the insurance company has taken any such stand during the proceeding before the Tribunal nor has adduced any evidence supporting the case in the First Information Report and the informant having contradicted the First Information Report in his evidence. The First Information Report lost its importance as being in contradiction to the evidence of the informant in - 8 - the court and further since the age of the victim is in contradiction to the evidence of the father and mother as well as the transfer certificate as 21 and 19 years and though the age of the doctor having much less as 13 years though it is true that the age of the deceased is only on estimation but the father and mother did not come with the exact date and further the Tribunal found the Ext. 1 and 2. The income of the deceased as the document being issued by private party without any register with signature of the deceased in token of the receipt of the payment and without any reliable document and hence it can well be inferred that the Tribunal in this fact was a justified in holding that the deceased was not employed and age of the victim was less than 18 years as the certificate regarding the employment was not inspiring confidence to hold that the victim was employed and hence took the consequence as his income on the basis of notional income and hence I do not find any illegality or irregularity in coming to the said decision by the Tribunal as the Tribunal has rightly assessed the income as just and the income assessed appears to be just and proper taking the multiplier of 15 as the age of the mother was 45 years under the Motor Vehicles Act or for - 9 - employer 15 is well applicable when the age of claimant is between 40 to 45 years and hence I do not find any illegality or irregularity in the impugned order to interfere with it and hence the appeal is dismissed. Kundan (Goapl Prasad, J.)