JUDGMENT Hon’ble Rajesh Chandra, J.—Iffco Tokio General Insurance Company Limited, the opposite party-appellant, has filed this appeal against the award dated 6.8.2009 passed by the Motor Accidents Claims Tribunal/Special Judge (E.C. Act), Pilibhit allowing compensation to the claimant-respondents No. 1 and 2 under Section 163 A of the Motor Vehicles Act, 1988 for the death of Ravindra Kumar in a motor accident. 2. In brief the facts of the case are that the claimants Awadhesh Kumar and Urmila Devi, the parents of the deceased Ravindra Kumar, filed Motor Accidents Claim Petition No. 134/2008 under Section 163 A of the Motor Vehicles Act, 1988 for a compensation of Rs. 7,50,000/- for the death of their son Ravindra Kumar in a motor accident. 3. According to the claimants on 9.5.2008 Ravindra Kumar, along with his grand mother and uncle Ganesh, was waiting for a vehicle, for going to village Udaykaran Pur, near Sakaria bus stand and they all were standing on the Kachha side of the road. At about 9 A.M. the driver of truck No. UP26- 9203 brought the truck in a rash and negligent manner from Pilibhit side and hit the said Ravindra Kumar causing severe injuries which resulted in his death. The accident was reported at P.S. Gajrola, District Pilibhit and a case was registered at Crime No. 412/2008. 4. The claimants further alleged that the owner of the truck was opposite party No. 1 Gedanlal & the truck was being driven by the opposite party No. 2 Bundan and was ensured with opposite party No. 3 Iffco Tokio General Insurance Company Limited. 5. The opposite party No. 1 Gedanlal, owner of the truck filed his written statement and admitted the ownership of the said truck. He further alleged that the accident did not take place due to any negligence of the driver Bundan. He contended that the driver was holding a valid and effective licence at the time of alleged accident and the truck in question was insured with opposite party No. 3 Iffco Tokio General Insurance Company Ltd.. He pleaded that the responsibility of paying the compensation, if any, is that of the Insurance Company. 6. The opposite party No. 2 Bundan, driver of the truck, filed his written statement and admitted himself to be the driver of the truck but he denied any accident from his truck. He pleaded that the responsibility of paying the compensation, if any, is that of the Insurance Company. 6. The opposite party No. 2 Bundan, driver of the truck, filed his written statement and admitted himself to be the driver of the truck but he denied any accident from his truck. He further alleged that he was holding a valid driving licence on the date of accident. 7. The opposite party Insurance Company filed its written statement and alleged that no such accident occurred and that at the time of alleged accident the driver was not holding a valid and effective driving licence and that the vehicle was being driven against the terms and conditions of the policy. It was further alleged that the burden is upon the owner of the truck to prove that the truck was being driven by a duly licenced driver and under the terms and conditions of the policy. 8. On the pleadings of the parties following issues were framed by the Tribunal: (1) Whether on 9.5.2008 at about 9.00 AM when Ravindra Kumar was waiting for the vehicle along with his grand mother and uncle near Sakaria bus stand, he was hit by the driver of truck No. UP26-9203 by driving the vehicle in a rash and negligent manner and as a result of this accident Ravindra Kumar sustained serious injuries and died as a result thereof. (2) Whether the vehicle in question was insured with opposite party No. 2 on the date of accident. (3) Whether the driver of the vehicle was having a valid and effective driving licence at the time of accident. (4) Whether the vehicle in question was being driven against the conditions of the insurance policy. (5) Whether the claimants are entitled to any compensation if yes then how much and from which of the opposite party. 9. Issue No. 1 and 4 were decided together by the Tribunal and it was held that the accident in question took place due to the rash and negligent driving of the truck by its driver and further that the truck was not being driven against the terms and conditions of the policy. 9. Issue No. 1 and 4 were decided together by the Tribunal and it was held that the accident in question took place due to the rash and negligent driving of the truck by its driver and further that the truck was not being driven against the terms and conditions of the policy. The Tribunal further held that the truck in question was insured with the opposite party Iffco Tokio General Insurance Company Ltd. on the date of accident and that the driver of the truck was duly licenced at the time of accident. While deciding issue No. 5 the Tribunal came to the conclusion that the claimants are entitled to a compensation of Rs. 1,54,500/- together with interest at the rate of 6% per annum. 10. It is against this award dated 6.8.2009 that the appeal has been filed. 11. In appeal we have heard Sri Baleshwar Chaturvedi, Advocate, learned counsel for the appellant Insurance Company and we have also perused the documents as have been filed with the appeal. 12. The petition has been filed by the claimants under Section 163-A of the Motor Vehicles Act. “Section 163-A of the M.V.A. was inserted by Act 54 of 1994 by way of a social security scheme. It is needless to say that the said provision is a Code by itself. The said provision has been inserted to provide for a new predetermined structured formula for payment of compensation to road accident victims on the basis of age/income of the deceased or the person suffering permanent disablement. It is needless to say that the said provision is a Code by itself. The said provision has been inserted to provide for a new predetermined structured formula for payment of compensation to road accident victims on the basis of age/income of the deceased or the person suffering permanent disablement. In view of the language used in said section there could be no manner of doubt that the said provision has an overriding effect as it contains a non obstante clause in terms whereof the owner of the motor vehicle or the authorised insurer is liable to pay compensation in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.(Ningamma and another v. United India Insurance Company Ltd.) 2009 (3) TAC 13 (SC).” Section 163-A of the Motor Vehicles Act runs as under : “[163-A Special provisions as to payment of compensation on structured formula basis : (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.—For the purposes of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.] 13. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.] 13. A perusal of the aforesaid section makes it clear that in a petition filed under Section 163-A of the Motor Vehicles Act the claimants are not required to plead or to establish that the death, in respect of which the claim has been made, was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. The only thing which has to be ascertained in the present case is as to whether the truck in question was involved in this accident or not. 14. The learned counsel for the appellant argued that the Tribunal erred in recording the finding that the deceased was hit by the truck when he was standing on the kachha side road near Sakaria bus stand. His contention is that in fact the deceased was travelling in the truck itself and was a gratuitous passenger. Since the deceased was travelling as a gratuitous passenger in the truck the Insurance Company was not liable to pay any compensation to the claimants. It was also argued that the Tribunal has committed illegality in taking the dependency at Rs. 10,000/- per year. 15. We have given our anxious consideration to the arguments placed by the learned counsel for the appellant and we feel that the contentions are not convincing. 16. In this case the claimants have examined P.W. 2 Raju Lal who has stated on oath that on 9.5.2008 at about 9 AM he was present at Sakaria bus stand. He saw that truck No. UP26-9203 came from Pilibhit side at a fast speed and the same was being driven negligently. The truck hit a child namely Ravindra who was standing near the tree and thereafter over turned. He further stated that some of the occupants of the truck also sustained injuries and one of them also died. The witness was cross-examined by the opposite party at length but there is nothing in his cross examination which may create any doubt in his testimony with regard to the manner of accident. He further stated that some of the occupants of the truck also sustained injuries and one of them also died. The witness was cross-examined by the opposite party at length but there is nothing in his cross examination which may create any doubt in his testimony with regard to the manner of accident. In cross-examination he stated that the father’s sister of Ravindra had been married in his village and as such Ravindra and others used to come to the village and Ravindra was known to him. He has categorically stated that the deceased Ravindra was not travelling in the truck. Thus from the evidence of Raju Lal it is established on record that the deceased Ravindra, who was standing on the road side, was hit by the truck and died subsequently. It is therefore established that the truck in question was involved in causing death of Ravindra. 17. Learned counsel for the appellant-Insurance Company argued that the witness Raju Lal is not named in the First Information Report nor he has been cited as a witness in the charge sheet. His contention is that Raju Lal is a procured witness and had not seen the accident. We have considered this argument and we feel that it is devoid of merits. The testimony of Raju Lal cannot be discarded merely on the ground that he has not been named in the FIR or has not been cited as a witness in the charge-sheet. There may be so many persons present at scene of accident but the person lodging the first information report may not be familiar with all of them. Thus non-mention of the name of Raju Lal in the FIR in inconsequential. Similarly the investigating officer of criminal case may not have come to know that Raju Lal also witnessed the accident hence non-inclusion of his name in the charge sheet also does not make any difference. Raju Lal has stated on oath that he was present at the place of occurrence as he had gone there to get his ‘darati’ repaired. There is nothing in his cross examination which may create any doubt in his testimony regarding his presence at the spot. 18. Raju Lal has stated on oath that he was present at the place of occurrence as he had gone there to get his ‘darati’ repaired. There is nothing in his cross examination which may create any doubt in his testimony regarding his presence at the spot. 18. It is also important to notice that although the driver of the truck has filed his written statement in the Court but he could not dare to come in the witness box and to state on oath that the accident was caused in such and such manner. He would have been the best person to tell as to whether the deceased Ravindra was travelling in the truck or was standing near the Sakaria bus stand. In the absence of his testimony we do not find any reason to discard the eye-witness account given by PW-2 Raju Lal. 19. The learned counsel for the appellant-Insurance Company argued that in relation to the same accident one Claim Petition No. 189/2008 was filed by Mangaljit Singh whereas the other Claim Petition No. 141/2008 was filed by Rajendra Pal. 20. In Claim Petition No. 189/2008 the statements of the claimant Mangaljit Singh and his mother Smt. Jaspal Kaur were recorded whereas in Claim Petition No. 141/2008 the statements of the petitioner Anil Kumar and one Yamuna Prasad were recorded. His contention is that from the statements of the above said witnesses in the two claim petitions it is established on record that the deceased Ravindra Kumar was travelling in the truck itself. This point was also argued before the Tribunal and the Tribunal has made a detailed discussion in this regard and has rightly come to the conclusion that even from the evidence from these witnesses it is not made out that Ravindra Kumar was travelling in the truck. The Tribunal has rightly mentioned in the judgment that since the statements of the above noted four witnesses in the other two petitions were recorded in cases in which the present claimants were not parties hence those statements cannot be read against the present claimants in this petition. 21. The learned counsel for the appellant Insurance Company further argued that the first information report of the accident was lodged by Anil Kumar and a perusal of that report reveals that Ravindra Kumar was a passenger in that truck. 21. The learned counsel for the appellant Insurance Company further argued that the first information report of the accident was lodged by Anil Kumar and a perusal of that report reveals that Ravindra Kumar was a passenger in that truck. We have gone through the FIR and we are satisfied that from the averments made in the F.I.R. no such inference can be drawn that Ravindra Kumar was travelling in the truck. Moreover a perusal of the judgments in Claim Petition No. 189/2008 and 141/2008 makes it clear that Anil Kumar himself was not present at the spot and as such what was written by him in the FIR was on the basis of hearsay evidence. This Anil Kumar has not been examined by the Insurance Company in this case hence in the absence of his evidence it cannot be concluded that the deceased Ravindra Kumar was travelling in the truck itself. 22. It is also important to notice that the Insurance Company has not pleaded that Ravindra Kumar was travelling in the truck. In the absence of any specific plea in this regard, the insurance company cannot raise this contention that Ravindra Kumar was a gratuitous passenger in the truck. Even no issue was framed in this regard. 23. From the above discussion it is clear that the accident in question took place due to the rash and negligent driving of the truck by its driver and also that the truck was not being driven against the terms and conditions of the policy. The finding of the Tribunal that the truck was involved in this accident is confirmed. 24. Now comes the question of compensation. The petition has been filed under Section 163-A of the Motor Vehicles Act hence the compensation has to be allowed on the basis of the structured formula as given in Schedule 2 of the Motor Vehicles Act, 1988. Since the age of the deceased Ravindra Kumar was about 11years and he was not having any income hence his notional income has been ascertained as Rs. 15,000/- per annum as has been provided in the 2nd Schedule. The Tribunal has deducted 1/3rd of the income towards the personal expenses of the deceased had he been alive. After deducting this 1/3rd income the dependency of the claimants has been taken as Rs. 10,000/- per year. 15,000/- per annum as has been provided in the 2nd Schedule. The Tribunal has deducted 1/3rd of the income towards the personal expenses of the deceased had he been alive. After deducting this 1/3rd income the dependency of the claimants has been taken as Rs. 10,000/- per year. The Tribunal after applying the multiplier of 15, as given in the 2nd Schedule, assessed the amount of compensation of Rs. 1,50,000/-. To this amount has been added an amount of Rs. 2,000/- as funeral expenses and Rs. 2500/- for the loss of estate as has been provided in Schedule 2 of the Motor Vehicles Act, 1988. The total amount of compensation thus has been assessed at Rs. 1,54,500/- and we feel that in arriving at this amount of compensation the Tribunal has not committed any illegality or irregularity. The finding in this regard is also confirmed. 25. In view of the above the appeal is liable to be dismissed. 26. The appeal is dismissed. However in the facts and circumstances of the case no order for costs is being passed. 27. The amount of Rs. 25,000/- which was deposited by the appellant Insurance Company at the time of filing appeal, shall be remitted to the Tribunal so that the same may be adjusted towards the amount to be deposited by the Insurance Company. ————