1. Heard Mr. A. Ahmed, learned counsel appearing 'for the appellant. None appeared for the respondents despite due notice from this court. 2. This is an appeal under section 173 of the Motor Vehicles Act, 1988 by the United India Insurance Co. Ltd. against the judgment and award dated 17.3.2006 as passed by the Motor Accident Claims Tribunal, Barpeta in MACT Case No. 1019 of 2003. 3. The findings as returned by the Tribunal as regards the accident that occurred on 17.3.2003 for rash and negligent driving of the vehicle bearing registration No.AS-15/8048 at Kalajal along 31-National Highway, death of one Nabibor Rahman, the insurance coverage of the said offending vehicle by the appellant. New India Assurance Company Ltd. are not in dispute by either of the parties or in the appeal. As such, those findings stand affirmed requiring no further appraisal. 4. The questions that have been projected in the appeal are related to whether the finding as to the age of the deceased is sustainable in absence of any documentary evidence juxtaposed against the post mortem report and whether the appellant has got any liability to discharge when the deceased was a passenger in a goods carriage. 5. Mr. Ahmed, learned counsel for the appellant submitted that the age of the deceased has been recorded in the post mortem report as 16 years whereas the Tribunal by ignoring the said documentary evidence has determined the age of the deceased as 22 years solely on the basis of the oral testimony. Such determination is therefore perverse requiring interference by this court. He further submitted that the deceased was travelling in a goods' carriage vehicle and as such he cannot be treated as a third party and the insurer in that event cannot be saddled with any liability for payment of compensation. No challenge however has been thrown to the assessment of the monthly income at Rs.3,000 by the appellant. 6. In support of his contention, Mr. Ahmed, learned counsel for the appellant has relied on a decision as rendered in National Insurance Co. Ltd. v. Bommithi Subbhayamma and Others, (2005) 12 SCC 243 , where the Apex Court held as under : "7.
6. In support of his contention, Mr. Ahmed, learned counsel for the appellant has relied on a decision as rendered in National Insurance Co. Ltd. v. Bommithi Subbhayamma and Others, (2005) 12 SCC 243 , where the Apex Court held as under : "7. In Asha Rani, (2003) 2 SCC 223 , this court while overruling Satpal Singh, (2000) 1 SCC 237 has clearly held that the insurance company is not liable for payment of any compensation for death of a gratuitous passenger travelling in a goods vehicle. 8. Asha Rani, (2003) 2 SCC 223 was followed in Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, (2003) 2 SCC 339 . Yet again, the said view was upheld in National Insurance Co. Ltd. v. Ajit Kumar, (2003) 9 SCC 668 . 9. The question again came up for consideration before a three Judge Bench of this court, of which we are members, in National Insurance Co. Ltd. v. Baljit Kaur, (2004) 2 SCC 1 wherein upon considering the effect of amendment carried out in section 147 of the Motor Vehicles Act, 1988 by the Motor Vehicles (Amendment) Act, 1994, it was opined: "17. By reason of the 1994 Amendment what was added is "including owner of the goods or his authorised representative carried in the vehicle". The liability of the owner of the vehicle to insure it compulsorily, thus, by reason of the aforementioned amendment included only the owner of the goods or his authorised representative carried in the vehicle besides the third parties. The intention of Parliament, therefore, could not have been that the words 'any person' occurring in section 147 would cover all persons who were travelling in a goods carriage in any capacity whatsoever. If such was the intention, there was no necessity of Parliament to carry out an amendment inasmuch as the expression 'any person' contained in sub-clause (i) of clause (b) of sub-section (1) of section 147 would have included the owner of the goods or his authorised representative besides the passengers who are gratuitous or otherwise. 18. The observations made in this connection by the court in Asha Rani case (2003) 2 SCC 223 to which one of us, Sinha, J, was a party, however, bear repetition : "26.
18. The observations made in this connection by the court in Asha Rani case (2003) 2 SCC 223 to which one of us, Sinha, J, was a party, however, bear repetition : "26. In view of the changes in the relevant provisions in the 1988 Act vis a-vis the 1939 Act, we are of the opinion that the meaning of the words "any person" must also be attributed having regard to the context in which they have been used, i.e., "a third party". Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor." 19. In Asha Rani, (2003)2 SCC 223 it has been noticed that sub-clause (i) of clause (b) of sub-section (1) of section 147 of the 1988 Act speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. Furthermore, an owner of a passenger-carrying vehicle must pay premium for covering the risks of the passengers travelling in the vehicle. The premium in view of the 1994 Amendment would only cover a third party as also the owner of the goods or his authorised representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise. 20. It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the Legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people." 10.
The same view was reiterated in National Insurance Co. Ltd. v. Challa Bharathamma, (2004) 8 SCC 517 , Pramod Kumar Agrawal v. Mushtari Begum, (2004) 8 SCC 667 and also in National Insurance Co. Ltd. v. V. Chinnamma, (2004) 8 SCC 697 ." 1. Mr. Ahmed, learned counsel for the appellant even relied on the decisions of the Apex Court as rendered in National Insurance Co. Ltd. v. Cholleti Bharatamma and Others (2008) I SCC 423 and United India Insurance Co. Ltd., Shimla v. Tilak Singh and Others, (2006) 4 SCC 404 where the principles as laid down in Bommithi Subbhayamma (supra) have been reiterated. 8. There is abundance of evidence to substantiate that the deceased was carried in the said offending vehicle as the fare-paid owner of his goods and to this extent, even a documentary evidence has been placed in the record. Hence, there is no substance while the appellant contended that it had no liability to discharge that has emerged from the said accident so far the damages to the claimants are concerned. 9. The other question that has been projected as regards the age of the deceased, it appears that in the claim petition the age of the deceased has been stated to be 22 years by the claimants, namely, Snit. Aimona Khatun, mother of the deceased. The claimant while deposed on 4.4.2005 got her age recorded as 39 years. As such, on the day of accident she was about 37 years. She has categorically stated that the deceased (her eldest son) was about 22 years at the time of accident. The statement of the mother shall always acquire primacy over the age recorded in the post mortem report inasmuch as the age as disclosed in the post mortem report is recorded either on opinion or from the disclosure by a person who was found to be acquainted with the deceased. There cannot be any reliance on the age as recorded in the post mortem report unless of course it is demonstrated that the age in the post mortem report has been so recorded on the basis of the statement made by the parents or a person who possessed a special knowledge for being proximated to the deceased's family.
There cannot be any reliance on the age as recorded in the post mortem report unless of course it is demonstrated that the age in the post mortem report has been so recorded on the basis of the statement made by the parents or a person who possessed a special knowledge for being proximated to the deceased's family. Thus, the finding of the Tribunal holding the age of the deceased at 22 years cannot be faulted with and as such the assessment of the compensation requires no interference. 10. For the reasons as discussed above, the appeal is devoid of merit and as such it stands dismissed, however without costs. 11. The appellant is directed to deposit the entire awarded sum in the Tribunal within a period of two months from today in terms of the said judgment and award dated 17.3.2006 as passed by the Motor Accident Claims Tribunal, Barpeta in MACT Case No. 1019 of 2003. Send down the LCRs forthwith. _____________