JUDGMENT
M.L. Visa, J.
1. This miscellaneous appeal filed by appellants against the judgment and award dated 7.9.1999 passed by the 3rd Additional District Judge-cum-Additional Accident Claim Tribunal, Muzaffarpur (in short, the Tribunal) in Claim Case No. 29 of 1992 dismissing the case of appellant, with the consent of the parties, is being disposed of finally at the stage of hearing under Order XLI, Rule 11 of the Code of Civil Procedure.
2. Short facts of the case are that on 20.4.1991 deceased Chandradeo Mahto alias Bataha was returning to his home with his brother Indradeo Mahto alias Nanhki on a cycle from Delhi Auto Centre, Bhagwanpur, Muzaffarpur and when he reached Pakri Chowk, driver Ramesh Rai (respondent No. 2) by driving rashly and negligently a Tractor bearing No. BPF 2917 knocked him down causing his death for which sadar P.S. Case No. 74 of 1991 was instituted by Vishundeo Mahto, appellant No. 1, father of deceased. Appellants, who include father, mother and brothers of deceased, claimed Rs. 7,55,000/-, as compensation by filing compensation case.
Rodai Sahni, respondent No. 1, is said to be the owner of the tractor and the Divisional Manager, Oriental Insurance Company Limited, Motijheel, Muzaffarpur with whose Insurance Company the tractor was said to be insured at the time of accident were opposite parties who appeared and contested the case. The claim application, on contest, was dismissed and respondent No. 4, the Insurance Company was given liberty to take action for realisation of a sum of Rs. 25,000/-given to the appellants as interim compensation.
3. The case of appellants is that in spite of sufficient material on record the Tribunal has wrongly held that appellants did not succeed to prove that alleged accident took place by Tractor No. BPF 2917.
4. Respondent No. 1, the owner of the tractor, who appeared in this appeal, has submitted that he purchased the tractor in question on 23.3.1994 and admittedly accident had taken place on 20.4.1991, much prior to the purchase of tractor by him and therefore, he is not at all liable to pay compensation because at the time of purchase of tractor he had no information about this accident and question of his admitting any liability on the tractor for a period before its purchase by him does not arise. Respondent No. 4 who has also appeared in this appeal has opposed the claim of appellants on the ground that appellants have failed to prove that accident took place with the said tractor.
5. The fact that on 20.4.1991 when the accident is said to have taken place Tractor No. BPF 2917 was insured with respondent No. 4, Insurance Company, is not in dispute. It is also not disputed that deceased died in an accident by a tractor. The case of Insurance Company, respondent No. 4, is that the appellants have not been able to prove that Tractor No. BPF 2917 was involved in the accident and after accident appellants without any basis picked up Tractor No. BPF 2917 and have alleged that accident took place with this tractor. From the perusal of record of the Court below which was called for as well as from the judgment and award of the Court below I find that FIR of Sadar P.S. Case No: 74/91, fardbeyan of appellant No. 1 and carbon copy of post-mortem examination report were brought on record and were marked as Exhibits 1, 2 and 3 respectively. It further appears that in the fardbeyan (Ext. 2) claiming himself to be the eye-witness to the accident the appellant No. 1 has stated that his deceased son died in an accident which occurred due to rash and negligent driving of Tractor No. BPF 2917 and he saw the number of the tractor in the light of a torch. Ext. 1 is the formal FIR in which also Tractor number is mentioned as BPF 2917 and it further shows that a case under Sections 279/337/304(A) of the Indian Penal Code was instituted on the basis of fardbeyan of appellant No. 1. Post-mortem Examination Report (Ext. 3) shows that cause of death was due to fracture of whole of skull bone into pieces and such injuries were caused by heavy, speedy vehicle which may be a tractor.”
6. The Tribunal in its judgment has observed that the claimants have not filed charge-sheet of the aforesaid police case and have not succeeded to explain satisfactorily the cause of non-filing of the charge-sheet. It appears that on behalf of the appellants a decision reported in 1997 (1) TAC 106 of the Gujarat High Court was cited in which it has been observed that findings given in criminal Court judgment cannot be taken aid and cannot be taken to advantage in civil or compensation claim matter. Without giving any opinion on this submission of appellants relying upon a decision of the Gujarat High Court, the Court below, after giving reference of this decision, has discussed oral evidence but in concluding para while deciding relevant issues it has again observed that non-filing of charge-sheet in a case makes the Tribunal to conclude that appellants have not succeeded to prove that the alleged accident took place by the Tractor No. BPF 2917 on 20.4.1991. It has further observed that “It is easy that FIR may be instituted in the police station but during investigation, the police will record the evidence of the witnesses, send the deceased for post-mortem examination, seize the vehicle and finally submit a F.F. under Section 173 of the Code of Criminal Procedure. At initial stage if the I.O. of the case reaches a conclusion on the basis of the police case diary that there is a prima facie case, charge-sheet is submitted otherwise final form is submitted with endorsement as the case true but no evidence or the case false”. It further observed that “in view of the above discussions, I find that I am not taking any help of judgment of any criminal Court, but I must stick to the fact that the applicant must prove that the accident took place by the vehicle as alleged in the petition under Section 166 of the M.V. Act and in this case, the appellants have not succeeded that the accident took place by the alleged tractor and the fact of instituting this case by applicant No. 1 before police has not been corroborated in his deposition. On the point of oral evidence I find that the Tribunal has disbelieved the case of appellants only on the ground that appellant No. 1 is in his evidence has not stated that he had filed a criminal case and one witness (AW 3) has stated that on 20.4.1991 it was dark night while another witness (AW 1) has stated that it was moonlit night. From the evidence of AW 1 before the Tribunal I find that it is true that in his evidence he has not said that he lodged any case with police for the accident but then when fardbeyan and FIR were already on record and were marked exhibits and which have not been challenged, his silence on the point of lodging FIR for the accident cannot be a ground for coming to a conclusion that no case was lodged with police for the accident. Even in cross-examination no question was put to him that he did not lodge any case with the police. His evidence has fully supported that accident took place with Tractor No. BPF 2917. It is true that Arjun Singh (AW 3) in cross-examination has said that it was dark night and appellant No. 1 has stated that it was moonlit night but then only by these contradictions, in their evidence, which is on the point of accident by a tractor, their evidence cannot be disbelieved in toto. I further find that suggestion to appellant No. 1 was given that no accident ever took place and suggestion to AW 3 was given that he was deposing falsely. Both have denied the aforesaid suggestions. It was not put to them that because of dark night they could not see the accident. Apart from it, Naresh Kumar (AW 4) has also supported that deceased died of an accident which took place due to negligent and rash driving of Tractor No. BPF 2917 and there is nothing in his cross-examination to disbelieve him.
7. Learned counsel appearing on behalf of Insurance Company, respondent No. 4, has argued that appellants have not been able to prove that after lodging the police case the tractor was seized and its driver was arrested. In my opinion, this argument is not sustainable in a compensation case. Fardbeyan of appellant No. 1 (Ext. 2) and Post-mortem Examination Report (Ext. 3) are on record and because the appellant No. 1, in his evidence, has not stated that he had lodged a case with the police and is silent on this point it cannot be said that, he did not lodge any FIR particularly when no question in cross-examination was put to him in respect of his lodging FIR. The observation of the Court below that because appellants have not been able to prove that charge-sheet in this case was submitted, therefore, Exts. 1, 2 and 3 have, become doubtful is not the correct approach of the Court in view of the fact that these documents have not been challenged by the respondents. The observation of the Court below that non-filing of charge-sheet in this case makes it to conclude that the appellants have not succeeded to prove that alleged accident took place by tractor in question is also not a correct finding which is against the established principle of law that findings given in a criminal case cannot be taken aid in compensation case like of the present nature. If finding given in a criminal case is not material in deciding the question of involvement in compensation case how the Court below can give its finding merely on the fact that appellants have failed to prove that charge-sheet in this case was submitted. In a compensation case the appellants have to prove their case that accident took place with a particular vehicle and in this case from the evidence on record I find that appellants have proved it by oral as well as documentary evidence. Since the appellants have proved their case that the accident took place by tractor No. BPF 2917 and its driver was driving the vehicle rashly and negligently which resulted in the death of deceased and it is admitted fact that the tractor was insured with the Insurance Company, respondent No. 4, I find that respondent No. 4 is liable to pay compensation.
8. On the point of compensation, case of appellant No. 1 is that his deceased son was a minor boy aged about 12 years and he was a mechanic of motorcycles earning Rs. 500/- per month. AWs 2, 3 and 4 have also stated like that. In a case of a student of class-VIII aged about 15 years met an accident by a truck, the Hon’ble Supreme Court in the case of Rajendra v. Bishamber Nath and Ors., (1998) 8 SCC 359, enhanced the compensation amount from Rs. 48,000/- to Rs. 1 Lac. In this case the deceased was a minor aged about 12-13 years and although it has been claimed by the appellants that he was a motor mechanic and his earning was Rs. 500 per month but then there is no convincing proof on the point of income of deceased. I think that the amount of Rs. 1 Lac will be proper for awarding compensation.
9. In the result, this appeal is allowed and Insurance Company, respondent No. 4, is directed to pay an amount of Rs. 1,00,000/- (Rupees on lac) as compensation to the appellants after adjusting the amount already paid as interim compensation. The balance amount must be paid to the appellants within two months from today failing which respondent No. 4 will be liable to pay interest on the balance amount at the rate of 6 per cent per annum also to the appellants. The parties shall bear their own costs.