JUDGMENT AND ORDER : Heard Mr. SK Medhi, the learned Central Govt. Counsel appearing on behalf of the appellant i.e. the Additional DIG, BSF, Masimpur, Silchar, Cachar. None appears on call for the respondents. 2. By this appeal under Section 173 of the Motor Vehicles Act, 1988, the appellant has challenged the judgment and order dated 07.01.2011 passed by the learned Member, MACT, Karimganj in MACT Case No. 6/2009. 3. As per the claim petition, on 09.12.2008 at about 8:30 AM, while the victim Tanbir Hussain (aged 10 years) was going on foot from the point of Ferry Ghat road towards Malua Idgah by the left side of Karimganj Silchar Road (NH-44), at that point of time a BSF Vehicle bearing Registration No. AS-11-AC/0039 (BSF, S. Toner), coming from Karimganj and proceedings towards Silchar, which was driven in rash and negligent manner, knocked down the victim from behind. As a result, the victim sustained grievous injuries on his head and other part of his body. Immediately thereafter, he was taken to Karimganj Civil Hospital where the doctor declared him dead. Post mortem was done thereafter. The respondents No.1 & 2, who are the parents of the deceased minor child, had filed a claim case, claiming compensation of Rs.5 Lakh with interest from the date of the application till realization. 4. In course of trial, the learned Tribunal framed the following issues for trial: 1. Whether the alleged accident took place due to rash and negligent driving of the vehicle in question and death of the deceased occurred in the accident? 2. Whether the vehicle was duly insured with opposite party insurance company and the insurance policy was valid at the time of alleged accident? 3. Whether the claimant is entitled to get any compensation, if so, to what extent and by whom payable? 5. In support of the claim petition, the respondents No.1 & 2 had examined two witnesses. The respondent No.1 was examined as PW.1, who exhibited the following documents: (i) Post-Mortem report as Exhibit.1 (ii) School certificate as Exhibit. 2 (iii) Certified copy of the order of GR Case No.1104/08 as Exhibit.3 (iv) Certified copy of the petition dated 1.9.09 filed by DIG, BSF as Exhibit. The respondent No.1 was examined as PW.1, who exhibited the following documents: (i) Post-Mortem report as Exhibit.1 (ii) School certificate as Exhibit. 2 (iii) Certified copy of the order of GR Case No.1104/08 as Exhibit.3 (iv) Certified copy of the petition dated 1.9.09 filed by DIG, BSF as Exhibit. 4 (v) Certified copy of Electoral Roll as Exhibit.5 (vi) Certified copy of FIR as Exhibit.6 (vii) Certified copy of Seizure List as Exhibit.7 (viii) Certified copy of Form No.54 as Exhibit.8 (ix) Certified copy of Inquest repot as Exhibit.9. 6. PW.1 in his evidence on affidavit had stated that the accident had taken place due to rash and negligent driving of the driver of the offending vehicle and he specifically denied that his son suddenly came running from the road said and hit the vehicle in rear side and got injured. In his cross examination, he denied the suggestion that his deceased son suddenly came in front of the vehicle. He also deposed that case against the BSF driver was pending. 7. One Abdus Sukkur was examined as PW.2, who was the eye-witness of the occurrence. PW.2 in his evidence on affidavit stated that the offending vehicle had knocked down the deceased from behind and consequently the victim sustained severe injuries on his head and other parts of his body. He heard that the victim had died. He also stated that he noticed that the accident took place due to rash and negligent driving by the driver of the vehicle. In his cross examination, PW.2 had stated that the date of occurrence was ‘Eid’ day. He denied the suggestion that the victim was crossing road when the accident took place. 8. The appellant did not examine any defence witness. The learned Tribunal on the basis of evidence on record held in respect of issue No.1 that the accident took place due to rash and negligent driving of the driver of the vehicle in question and the issue No.1 was answered in affirmative and decided in favour of the claimants. In respect of issue No.2, it was held that the vehicle was a Government of India vehicle and the claim was made against Union of India, hence, there is no question of insurance coverage in respect of the said vehicle. Thus, the issue No.2 was also decided in favour of the claimant. In respect of issue No.2, it was held that the vehicle was a Government of India vehicle and the claim was made against Union of India, hence, there is no question of insurance coverage in respect of the said vehicle. Thus, the issue No.2 was also decided in favour of the claimant. In respect of issue No.3 it was held that since the vehicle was driven in rash and negligent manner, the claimants are entitled to compensation under Section 166 of the Motor Vehicles Act. Considering the age of the minor child, and by relying on the case of New India Assurance Co. Ltd. Vs. Satender and others, 2007 (1) TAC 11(SC), the claimants were found to be entitled to compensation of Rs.2,25,000/-. The learned Tribunal further held that the compensation was payable by both the appellants herein jointly and severally along with interest @ 6% per annum from the date of filing application till the date of order. 9. The learned CGC has referred to the grounds taken in this memo of appeal and it is submitted that the consistent stand of the appellants all throughout was that the deceased child was running on the national highway to cross the road and had hit the moving vehicle at the rear side from the right side of the road and therefore, this was not a case of rash and negligent driving of the offending vehicle but the accident took place solely for the reason that the minor child was running on the national highway. It is further submitted that the learned Tribunal did not take into account that the Staff Court of Enquiry of the BSF had examined all aspects of the matter and that the driver of the offending vehicle in the case was not found guilty. The learned CGC has further submitted that there are strict rules in force for BSF drivers and co-drivers and these drivers are highly trained with rigorous training and a BSF driver never drives the vehicle in high speed and therefore, the accident occurred due to the negligence of the minor victim only, and therefore, no liability of paying compensation can be fastened on the appellants. 10. Having heard the learned CGC, this Court has perused the materials on record. 10. Having heard the learned CGC, this Court has perused the materials on record. As per the certified copy of the petition dated 01.09.2009 filed before the court of learned SDJM(S), Karimganj in GR No. 1104/2008 by the Deputy Inspector General, BSF, Silchar, the said authority has stated before the court of learned CJM, Karimganj, as follows: “To, The Hon’ble Chief Judicial Magistrate, SDJM Court, Karimgajn (Assam) Sub : FIR No. 162/2008 u/s 279/304 A IPC, GR No. 1104/2008 filed in SDJM Karimganj by Fattah Sir, Whereas a criminal case No. 162/2008 Vs. No. 849330553 SC Sanjit Kumar Singha of 93 Bn. BSF is pending before your Hon’ble Court for adjudication. 2. Whereas the said accused No. 849330553 SC Sanjit Kumar Singha of 93 Bn. BSF is serving under my command and he committed alleged offence while on bona-fide Govt. duty. 3. Whereas in exercise of my discretion as envisaged in Section 80 of the BSF Act, I have decided to institute proceedings against the said accused No.849330553 SC Sanjit Kumar Singha of 93 Bn. BSF the Border Security Force Court (Extract of Section 80 & 81 of BSF Act 1968 is enclosed herewith for kind perusal please). 4. Whereas I directed the accused No. 849330553 SC Sanjit Kumar Singha of 93 Bn. BSF to be detained in Border Security Force Custody. 5. I, therefore, request you to stay the proceedings in your Court against the accused and forward requisite documents to the undersigned as per Section 475(1) of Cr.P.C. 1973 for instituting proceedings against the said accused under BSF Act & Rules. 6. That the outcome of the trial of the accused by Border Security Force Court or the result of effectual proceedings instituted or ordered to be taken against the said accused shall be intimated as per Rule-7 of the Criminal Courts and Border Security Force Courts (Adjustment of jurisdiction Rules-1969). Yours faithfully, Sd/- Illegible Deputy Inspector General, Border Security Force Sector HQ Silchar” Therefore, prima facie finding the driver of the offending vehicle guilty, the said authority appears to have exercised power under Sections 80 & 81 of the BSF Act by instituting a proceeding. The said driver was also directed to be detained in the custody of the BSF. Yours faithfully, Sd/- Illegible Deputy Inspector General, Border Security Force Sector HQ Silchar” Therefore, prima facie finding the driver of the offending vehicle guilty, the said authority appears to have exercised power under Sections 80 & 81 of the BSF Act by instituting a proceeding. The said driver was also directed to be detained in the custody of the BSF. The learned trial court was requested to stay the proceeding of GR Case No.1104/2008 against the said accused with a request to forward the requisite documents to the said authority as per Section 475(1) CrPC for instituting a proceeding against the accused under the BSF Act and Rules. 11. It is a matter of record that the appellant did not lead any evidence. In the present case in hand, there is no evidence before the learned Tribunal that the victim was running on the National Highway while crossing the road and had hit the offending vehicle at its rear side. In the absence of any evidence of defence, coupled with the fact that as per the contents of Exhbt.4, BSF authorities had subjected the driver of the offending vehicle to a court of enquiry, prima facie shows that even the BSF authorities had found the accused of guilty of the alleged offence. The version of the driver that the victim child was crossing the road, if accepted, the BSF would not have instituted any proceeding by informing the learned CJM, Karimganj that the driver had committed the alleged offence while on bona-fide Government duty. This Court is aware that merely because an enquiry has been initiated, the initiation of such enquiry does not constitute proof of guilt. However, in the present case, the appellant did not give any primary evidence before the learned Tribunal to either prove the innocence of the driver of the offending vehicle or to prove that the victim child was running on the National Highway to cross the road and hit the offending vehicle in the rear side of the vehicle. The result of the enquiry held by the BSF was not tendered in evidence before the learned Tribunal and therefore, there was no material before the learned Tribunal to hold that the offending vehicle was not being driven in a rash and negligent manner. The result of the enquiry held by the BSF was not tendered in evidence before the learned Tribunal and therefore, there was no material before the learned Tribunal to hold that the offending vehicle was not being driven in a rash and negligent manner. Accordingly, this Court finds no material on record either before the learned Tribunal or before this appellate court to take a view contrary to the decision of the learned Tribunal on issue No.1 wherein the learned Tribunal had held that the accident took place due to rash and negligent driving of the offending vehicle by the driver. 12. In the case of Amul Ramchandra Gandhi V. Abhasbhai Kasambhai Diwan & Ors., AIR 1979 Guj 14 (DB) (para-11), it has been held as follows - “11. The principles which emerge on a review of the authorities may be thus summarized: A distinction must be necessarily drawn between children and adults when the question of contributory negligence arises for a child cannot be expected to be as careful for his own safety as an adult. Where a child is of such an age as to be unable to fend for him self or to be naturally ignorant of danger or where in doing an act which contributed to the accident he was only following the instincts natural to his age and the circumstances he is not guilty of contributory negligence. A child should be found guilty of contributory negligence only if it is established as a matter of fact on the evidence on record that he is of such an age and understanding as reasonably to be expected to take precautions for his own safety and the blame for the accident could be necessarily attached to him In cases of road accidents. It must be borne in mind that a child is not possessed of the road sense or the experience of elders Even if it transpires that he was taught road discipline either at home or at school and that therefore if he had bestowed some thought he would have realized that it was his duty to take reasonable care for his own safety still a normal child would not be held culpable in view of his propensity to forget altogether what has been taught to him if some thing else is uppermost in his mind. A normal child is always momentarily forgetful of the perils of crossing and walking on a road regretfully though and under such circumstances if he failed to notice even an on coming vehicle and got hurt by it he cannot be held guilty of contributory negligence. In such a cases the question of the duty of the driver of the vehicle must be examined with greatest precision and unless the driver is in a position to show on establishment of primary facts that he was driving the vehicle in such a manner that he could have brought it to standstill in case of emergency and that the accident was inevitable or unavoidable the inference of his negligence and his alone must be raised almost as a matter of course.” The above has been followed by the Division Bench of the Hon’ble Allahabad High Court in the case of Yash Pal Singh (Minor) V. State of U.P., (2017) 5 ADJ 696 : (2017) 0 Supreme (All) 423. 13. In the case of Amul Ramchandra Gandhi (supra), the Hon’ble Gujarat High Court had quoted the following passage - “(6) In Jones v. Lawrence, (1969) 3 All England Law Reports 267, the plaintiff was a boy aged seven years and three months. He ran out from behind a parked van across a road apparently without looking. There was a collision between him and the defendant who was riding a motor cycle due to the defendants negligence in travelling at about 50 miles per hour in a built up area where there was a 30 miles per hour speed limit. The infant plaintiff sustained lacerations and fractures including a fractured skull. He had made an excellent recovery from his injuries but there was some evidence of permanent brain damage resulting in impairment of his ability to concentrate. The accident resulted however in his missing one terms schooling and his school work was adversely affected for two or three years thereafter. At the trial one of the defences raised was regarding contributory negligence. Cumming Bruce, J. held that the infant plaintiff should not have run out across the road in the path of a motor bicycle driven down the road at about 50 miles per hour. The question however was whether it was proved that he had shown a culpable want of care for his own safety. Cumming Bruce, J. held that the infant plaintiff should not have run out across the road in the path of a motor bicycle driven down the road at about 50 miles per hour. The question however was whether it was proved that he had shown a culpable want of care for his own safety. He had been taught road discipline and at the date of the trial when he was aged about 11 he described in the witness box with perfect skill what he had been taught The learned Judge then proceeded to observe: I do not doubt that he had received that teaching before the date of the accident and that if he had given the matter a thought he would have realised it was his duty. as a matter of taking reasonable care for his own safety to advance with the utmost caution and look round the corner of the van in order to see whether any thing was coming before he walked or ran across the road. The propensity however of infants of seven years and three months to forget altogether what they have been taught was sensibly described by his school mistress. She made an observation that if a child of that age wants to get anywhere he will forget all he has been taught. She said such children do not remember if something else is uppermost in their minds. She was only describing what I regard as the normal experience of children of the age of seven years and three months. . . . . . . . . . . . . . In my view the defendant has failed as a matter of probability to show that the infant plaintiff was culpable or that his behaviour was anything other than that of a normal child who is regretfully momentarily forgetful of the perils of crossing a road. After all what he had failed to notice was not the on coming movement of a lorry a bus or a car but a motor bicycle which of itself is probably less likely to force itself as it approaches on the attention of a small child. After all what he had failed to notice was not the on coming movement of a lorry a bus or a car but a motor bicycle which of itself is probably less likely to force itself as it approaches on the attention of a small child. Thus I negative contributory negligence.” In the case of Naval Kumar @ Rohit Kumar V. State of H.P., (2015) 0 Supreme (HP) 45 (CWP 475/2013 decided on 09.01.2005), the Hon’ble Division Bench had quoted the following – In the case of Corporation of The City of Glasgow vrs. Taylor, reported in (1922) 1 AC 44, the House of Lords have held that in the case of child eating poisonous berries, the proprietors and custodians of the garden are liable. Their lordships have held as under: “The father of a boy, aged seven, who died from eating the berries of a poisonous shrub growing in some public gardens in Glasgow, sued the Corporation as the proprietors and custodians of the gardens for damages for the death of his son. The pursuer averred that on a piece of fenced ground in the gardens the defenders grew, among other specimen plants, a shrub bearing poisonous berries which presented a tempting appearance to children; that this enclosed piece of ground was open to the public, access thereto being by a gate which could be easily opened by young children, and was in a part of the gardens much frequented by children; that the pursuer’s son, with some other children, entered the gardens and ate some of the berries of this poisonous shrub and died; that the defenders knew that these berries were a deadly poison, but took no precautions to warn children of the danger of picking the berries of this shrub or to prevent them from doing so; and that there was no adequate notice in the gardens warning the public of the dangerous character of the specimen shrubs growing therein:- Held, that the pursuer’s averments disclosed a good cause of action against the defenders, and that the action ought to proceed to trial. Cooke V. Midland Great Western Railway Co. of Ireland (1909) A.C. 229 applied.” 14. Cooke V. Midland Great Western Railway Co. of Ireland (1909) A.C. 229 applied.” 14. Therefore, in the present case in hand, even if it is assumed for the sake of argument that the victim child had run on the National Highway and hit the right rear of the truck, even then, in light of the cases cited above, the contributory negligence on part of the said minor victim aged 10 years cannot be presumed by any stretch of imagination. It was a festive “Eid morning” when the accident had occurred and, as such, the driver of the offending vehicle was required to drive with abundant caution so as to be able to apply brakes of his heavy vehicle and come to an immediate stop/halt when the child was allegedly seen running across the road. This amount care was not taken by the driver of the offending vehicle and, as such, by applying the ratio of the case of Amul Ramchandra Gandhi (supra), this is not a case where any blame of “contributory negligence” can be applied and/or presumed on the part of the minor victim. 15. In view of above, as this Court does not find any materials to show any contributory negligence on the part of the victim, this appeal is not found to be sustainable and the same is hereby dismissed. 16. As the accident occurred on 09.12.2008 and the learned Tribunal had passed the impugned order on 07.01.2011 and by the said judgment and award, the appellant was directed to make payment of the awarded sum within two months from the date of the order and on that condition, the learned Tribunal had awarded @ 6% interest per annum from the date of filing of the application till the date of the award. It is further observed that on 13.12.2008 the appellant had deposited an amount of Rs.1,96,460/- by demand draft dated 11.10.2012, therefore, no further interference to the impugned judgment and award is called for. Accordingly, the appeal stands dismissed. 17. It is seen that the respondent Nos. 1 & 2 have not contested this appeal and they have not come forward to withdraw the compensation amount which has been deposited before the Registry of this Court. Accordingly, the appeal stands dismissed. 17. It is seen that the respondent Nos. 1 & 2 have not contested this appeal and they have not come forward to withdraw the compensation amount which has been deposited before the Registry of this Court. Therefore, for the ends of justice, this Court deems it fit to direct the Regitry of this Court to send a copy of this order to the respondents No.1 & 2 so as to inform them about the outcome of the appeal and to enable the said respondents No.1 & 2 to do the needful to withdraw the compensation amount, which is deposited before the Registry of this Court. 18. In the present case, on perusal of the record, this Court does not find any pre-deposit of Rs.25,000/- made by the appellant. Therefore, let the matter be brought to the notice of the Registrar (Judicial) so that necessary direction can be issued to the concerned officials of this Court to insist on pre-deposit of statutory deposit at the time of filing of the appeal under Section 173 of the Motor Vehicles Act, 1988.