In a claim for compensation under s.163A of the Motor Vehicles Act, 1988, the age of the victim should be determined on the basis of the age recorded in the postmortem report, which may be corroborated by other evidence.

1. The Court: The appellants are aggrieved by an award of the Motor Accidents Claims Tribunal, Alipore dated January 9, 2007 granting them Rs.1.6 lakh compensation without interest, but ordering the insurance company to pay 9% p.a. interest, if it failed to pay the amount within the time mentioned in the award.

2. The appellants claimed compensation under s.163A of the Motor Vehicles Act, 1988. They filed the requisite application on January 4, 1999. They claimed Rs.2 lakh compensation (with costs) and 12% p.a. interest from the date of the application.

3. The case stated in the application filed before the claims tribunal was this. The claimants were the wife, mother and four children of one Golab Sk. who was killed in an accident caused by a truck no.WB-51-0696 on December 9, 1996. The victim was 28 and a potato seller. He used to earn Rs.3,000 per month. The offending vehicle was covered by a valid insurance policy issued by Oriental Insurance Co. Ltd. They decided not to claim any compensation under s.140.

4. The owner of the offending vehicle, a party to the case, chose not to contest the case. The insurance company contested the case by filing a written statement denying and disputing the correctness of all materials facts. The wife of the victim examined herself as PW1. Her evidence was as follows. The victim was travelling in the matador dashed by the offending vehicle with his potato bags. He died in hospital soon after admission. He was 28 and used to earn Rs.3,000 per month.

5. The post-mortem report was marked Ex6 without objection. In it the victim’s age was recorded as 28. Identity cards of PW1 and the victim’s mother issued by the Election Commission of India were marked Ex8 and Ex.8/1 respectively. In Ex8 it was recorded that on January 1, 1995 PW1 was 30.

6. Cross-examination of PW1 is quoted below:–

“I have filed this case claiming compensation for the death of my husband. My husband died as result of accident caused by Matador. Two vehicles were involved in the accident. I knew about the accident from person who was with my husband at the relevant point of time.

Police has interrogated me. I reside at Kazipada within District Murshidabad. I reside there. My husband was 28 years old.

At present I am 35 years old. My husband was engaged in potato business. I have filed documents to show that my husband was engaged in potato business. I have daughters and three sons. My eldest daughter is aged about 18 years. My mother-in-law is alive. It is not a fact that the accident did not take place as alleged. It is not a fact that both the vehicles are liable for causing accident. It is not a fact that my husband was not 28 years old at the time of his accident.

Not a fact that I am deposing falsely.”

7. The claims tribunal held as follows. It was proved that the accident caused by the offending vehicle that was covered by a valid policy issued by the insurance company killed the victim on December 9, 1996. In view of the age of PW1 recorded in Ex8, at the date of the accident the victim could not be less than 36. Hence multiplier 16 would apply. Income was not proved. Hence the notional income provision would apply.

8. Mr Bhowmick appearing for the appellants has submitted as follows. The application was filed under s.163A, not under s.166. The claims tribunal ought to have accepted the victim’s age recorded in Ex6. In view of evidence, it should not have applied the notional income provision, but held that the victim’s monthly income was Rs.3,000. Compensation, if found more than the amount claimed, could be granted. The schedule is to be strictly followed. Determination process under s.163A is different from the one under s.166. The claims tribunal erred in law by not granting general damages and interest.

9. Mr Bhowmick has relied on the decisions in Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala, AIR 2001 SC 1832; Deepal Girishbhai Soni & Ors. v. United India Insurance Co. Ltd., 2004 SAR (Civil) 596; N