JUDGMENT : 1. Silbester Pahan Tigga (hereafter the victim) suffered multiple injuries in a motor accident on 24th September, 2007. He was taken to a nearby hospital by local residents. On 27th September, 2007, the victim succumbed to such injuries. 2. The victim’s widow and minor children (hereafter the claimants) approached the Motor Accident Claims Tribunal, Jalpaiguri (hereafter the tribunal) with an application under section 166 of the Motor Vehicles Act, 1988, registered as M.A.C. Case No.316 of 2007. It was pleaded in such application that a pick-up van, bearing registration no. WB 71/2628 (hereafter the offending vehicle) while being driven rashly and negligently dashed the victim, who was driving a motorcycle, from behind. The victim, as a result of the impact, fell down and suffered multiple injuries which ultimately led to his premature death. The victim was the Manager of State Bank of India, Boulbari Branch, P.S. – Maynaguri, District – Jalpaiguri and was aged 44 years 4 months on the date of death. He was drawing gross salary of Rs.30,384/-. The claimants, thus, claimed Rs.36,65,000/- on account of compensation. 3. The owner of the offending vehicle did not contest the claim application. However, the insurer /opposite party no.2 before the tribunal opposed the claim application not only by filing a written statement but also by filing an additional written statement. 4. Various points were taken in defence by the insurer in such written statement viz. that the driver of the offending vehicle did not posses valid driving licence to drive it at the relevant point of time; that the offending vehicle was not insured by the insurer at the time of the alleged accident; that the victim did not die because of any motor accident involving use of the offending vehicle; that the victim was himself driving the motorcycle negligently and accordingly, was a contributor to the accident; and that the victim was driving the motorcycle without having valid driving licence. In the additional written statement, the insurer sought to take an additional defence to the effect that the driver of the offending vehicle after unloading materials that it was carrying, had parked it in the garage at the house of the owner at about 8-00 p.m. and during such period and thereafter, the offending vehicle did not meet any accident with any vehicle and also that involvement of the offending vehicle had been alleged by the claimants in collusion with police personnel of Maynaguri Police Station with oblique motive to anyhow derive wrongful economic gain at the cost of public exchequer. 5. In course of trial before the tribunal, the widow of the victim (P.W.-1), an eye witness (P.W.-2) and an employee of the bank where the victim was employed (P.W.-3) deposed in support of the claim. The insurer did not adduce any evidence. Considering the evidence-on-record as well as the rival claims, the tribunal returned a finding that the victim indeed died in a motor accident involving the use of the offending vehicle which was being driven rashly and negligently. Although the gross salary of the victim was Rs.30,384/-, the tribunal reckoned Rs.17,971/- as his net salary for the purpose of computation of compensation. Deducting 1/3rd on account of personal and living expenses of the victim and applying the multiplier of 15, the tribunal assessed Rs.21,66,520/- as compensation payable to the claimants. In addition, the tribunal awarded Rs.2000/-, Rs.2,500/- and Rs.5000/- on account of funeral expenses, loss of estate and loss of consortium respectively, totaling to Rs.21,66,020/-. Since the offending vehicle was found to be covered by a policy issued by the insurer, the tribunal held it liable to indemnify the claimants. Such amount of compensation was directed to be paid within two months from date of the award failing which the insurer was made liable to bear interest @ 8% per annum from the date of filing of the claim application till its realisation. 6. By presenting FMA 312 of 2013, the insurer has challenged the correctness of the award of the tribunal dated 21st February, 2013. The claimants by presenting COT 71 of 2013 have questioned the assessment of compensation made by the tribunal in such award. 7. 6. By presenting FMA 312 of 2013, the insurer has challenged the correctness of the award of the tribunal dated 21st February, 2013. The claimants by presenting COT 71 of 2013 have questioned the assessment of compensation made by the tribunal in such award. 7. While the appeal and the cross-objection were pending, the claimants had filed CAN 6140 of 2016 seeking withdrawal of a part of the sum awarded by the tribunal as compensation which the insurer had secured while obtaining stay of operation of the award. 8. On 12th September, 2017, a coordinate Bench of this Court heard the application for withdrawal and expressed that having regard to the point involved in the appeal as well as the fact that the accident had occurred almost 10 years back, the appeal as well as the cross-objection required expeditious hearing. The same were directed to be enlisted after Puja vacation. Today, we have heard the parties on the merits of the appeal and the cross-objection and propose to dispose of the same as well as the application by this common judgment and order. 9. Mr. Pahari, learned advocate appearing for the appellant/insurer urged that the offending vehicle was not involved in the accident and, therefore, the insurer was erroneously held liable to indemnify the claimants. Our attention has been drawn to the First Information Report (hereafter the FIR) giving rise to Maynaguri Police Station Case No.270 of 2007 dated 26th September, 2007 under sections 279/388 of the Indian Penal Code. The original written complaint based whereon the FIR was registered was also placed. 10. According to Mr. Pahari, the informant was not an eye-witness to the accident. He had simply given information of the victim having been involved in a road accident resulting in multiple injuries that he suffered for which he had to be transferred to a local nursing home at Siliguri for better treatment. The written complaint made it clear that the victim was dashed by an “unknown pickup van” and the “road was almost abandoned at that material time”. Relying on such written complaint, he submitted that the eye-witness account of the P.W.-2 appears to be thoroughly unbelievable and should have been discarded by the tribunal altogether. 11. Mr. Pahari has further invited our attention to the FIR to contend that the time of the accident mentioned there differs from the time spoken to by the P.W.-2. Relying on such written complaint, he submitted that the eye-witness account of the P.W.-2 appears to be thoroughly unbelievable and should have been discarded by the tribunal altogether. 11. Mr. Pahari has further invited our attention to the FIR to contend that the time of the accident mentioned there differs from the time spoken to by the P.W.-2. While the FIR version is that the victim met with an accident at about 8-15 p.m. on 24th September, 2007, P.W.-2 deposed that the accident occurred on 24th September, 2007 at about 18-15 hours. Referring to such discrepancy in regard to the time of the accident, he contended that no case had been set up before the tribunal by the claimants to establish that the offending vehicle was involved in the accident. 12. To buttress his contention that the version of the P.W.-2 should not have been believed, Mr. Pahari finally contended that although the FIR had referred to a head on collision, the version in the claim application as well as the version of the P.W.-2 was that the victim had been dashed from behind by the offending vehicle. There being no consistency in respect of the manner in which the accident took place, he urged that the claim application should have been dismissed. 13. Answering the contentions of Mr. Pahari, Mr. Banerjee, learned advocate for the claimants submitted that an FIR is not an encyclopedia of facts giving minute details of all events, pre and post accident; on the contrary, it simply has to be regarded as an information given to the police of a cognizable offence having been committed which requires investigation. He urged that prompt registration of the F.I.R within two days of the accident ought to be considered as sufficient proof of the accident itself. He urged that prompt registration of the F.I.R within two days of the accident ought to be considered as sufficient proof of the accident itself. He further contended that although the registration number of the offending vehicle was not indicated in the written complaint that gave rise to the FIR, the investigating officer in course of investigation duly collected materials including the statement of the said eyewitness (P.W.–2) and, accordingly, filed a police report (chargesheet) under section 173(2) of the Code of Criminal Procedure wherein prima facie commission of offence by the driver of the offending vehicle was alleged and it was urged that he should be tried in open court for the offences punishable under sections 279/338 of the Indian Penal Code, as well as added section 304A thereof. Our attention was also drawn to the list of witnesses by whom the allegations against the driver of the offending vehicle were likely to be proved and such list, inter alia, at serial no.6 indicated the name of the eye-witness, P.W.-2. The cloud of suspicion regarding the presence of the P.W.–2 at the site of the accident would, according to him, stand dispelled thereby. 14. Next, Mr. Banerjee placed before us the deposition of the P.W.-2. In his examination-in-chief, the P.W.-2 asserted that he had witnessed the accident which resulted in the victim suffering fatal injuries. In course of cross-examination, not a single suggestion was put to the P.W.-2 that the offending vehicle was not involved in the accident or that the victim himself was driving the motorcycle in a rash and negligent manner. Suggestion that the P.W.-2 had not witnessed the accident, though put, was denied by him. 15. Referring to the additional written statement filed by the insurer, Mr. Banerjee contended that the burden of proving the assertion that the offending vehicle, after unloading of the materials being carried on it had been brought back to the garage at the house of its owner and parked there, could have been proved either by the driver of the offending vehicle or its owner and/or also by the so-called investigator who had been appointed by the insurer. However, neither the driver or the owner of the offending vehicle nor the investigator appeared as a witness in course of trial before the tribunal to support the claim set up in the additional written statement. However, neither the driver or the owner of the offending vehicle nor the investigator appeared as a witness in course of trial before the tribunal to support the claim set up in the additional written statement. It was, thus, contended that the insurer having miserably failed to discharge the burden of proving the case set up in the additional written statement, that by itself is sufficient ground for upholding the award of the tribunal. 16. Placing the cross-objection, Mr. Banerjee contended that the tribunal erred in reckoning Rs.17,971/- as the net salary of the victim. Our attention was drawn to the acquittance roll marked Ext.8 which was admitted in evidence on rd February, 2011. It appears therefrom that the victim’s gross salary was Rs.30,384/-and after deductions towards Income-Tax, Professional-Tax, Provident Fund, Insurance, House-building Loan, etc. the victim took home Rs.17,971/-. It was contended that apart from Rs.500/- on account of Income-Tax and Rs.130/- on account of Professional-Tax, no other amount was liable to be deducted from the victim’s gross salary and the tribunal ought to have worked out compensation on the basis of Rs.29,754/-. 17. Mr. Banerjee has further urged that in view of the Constitution Bench decision of the Supreme Court dated 31st October, 2017 in SLP (Civil) No. 25590 of 2015 (National Insurance Co. Ltd. –vs.- Pranay Sethi), the claimants are entitled to enhanced amount under the heads – future prospect, loss of estate, loss of consortium as well as funeral expenses. That apart, he contended that the tribunal committed gross error in not awarding interest from the date of filing of the claim application without assigning any reason. 18. Finally, it was submitted that though the claimants had claimed more or less Rs.36,00,000/- (Rupees thirty-six lakhs) as compensation by filing the claim application, they are entitled to something more in the ultimate analysis and while appealing to us to dismiss the appeal, he prayed that the cross-objection be allowed. 19. In his usual fairness, Mr. Pahari did not dispute that compensation would have to be re-assessed as submitted by Mr. Banerjee if at all we are of the opinion that the appeal filed by the insurer should fail. 20. We have heard learned advocates for the parties and perused the materials-on-record. 21. We take up the appeal for consideration first. 22. Pahari did not dispute that compensation would have to be re-assessed as submitted by Mr. Banerjee if at all we are of the opinion that the appeal filed by the insurer should fail. 20. We have heard learned advocates for the parties and perused the materials-on-record. 21. We take up the appeal for consideration first. 22. The deposition of P.W.-2 is the most vital piece of evidence on which the claim for compensation hinges. The same is extracted below :- “I would know Silbester Pahan Tigga, since deceased, who met with an accident by a pick up van, being no.WB-71/2628. On last 24.9.07 at about 18’15 hours on the NH-31 near Singhimari Calvert under P.S.Naynaguri, Dist. Jalpaiguri. Due to such accident he received hurt and died. Driver was fully responsible for the accident as he was driving the offending pick-up van rashly as well as negligently at the material point of time. I witnessed the accident. XXXMN : O.P. no.1 : 23. It is not a fact, that I never witnessed the accident. XXXMN : On behalf of O.P.no.2 : 24. I did not inform the local P.S. about the accident. Police examined me in connection with Moynaguri P.S. Case no.240/07 at 26.9.07. My residence is about 1 K.M. off from the place of accident. I did not inform State Bank of India, Boulbari Branch, about the accident. Silbester Pahan Tigga, since deceased, resides at Mohit Nagar. I did not inform petitioner no.1 Maya Swati Tigga, who is the wife of the deceased Silbester Pahan Tigga about the accident. 25. It is not a fact, that I never witnessed the accident. 26. It is not a fact, that I am deposing falsely in this case.” 27. The written complaint giving rise to the FIR does not allege that the offending vehicle had been involved in the accident. It also appears therefrom that the road was almost abandoned at the material time. These, together with the varying versions regarding the manner of the accident (head-on collision in the FIR and the victim being dashed from behind, as per the P.W.-2), impels us to accept the alleged presence of the P.W.-2 at the site of the accident with a pinch of salt. For a moment, we were not minded to believe the P.W.-2. However, we are compelled to take a different view and rule against the insurer having regard to two aspects. For a moment, we were not minded to believe the P.W.-2. However, we are compelled to take a different view and rule against the insurer having regard to two aspects. First, the contention of Mr. Banerjee that an FIR is not an encyclopedia of facts cannot be overlooked. It is trite that an FIR does not constitute substantive evidence and can, strictly speaking, be only used as a previous statement for the purpose of either corroborating or contradicting its maker. P.W.-2 was not the informant, and hence the P.W.-2’s version of the accident cannot be disbelieved only on the ground that it materially differs from the FIR version. Secondly, what appears to us to clinch the issue is the failure of the insurer to prove the contents of the additional written statement that it had filed, wherein it set up a specific case to the effect that the offending vehicle had returned to the garage by 8.00 p.m. as per the investigation report of the investigator appointed by the insurer. If indeed that was the case, the burden of proving the fact of the offending vehicle having returned to the garage should have been discharged either by producing the driver or the owner of the offending vehicle as witness. Even if the owner or the driver was not available, the investigator appointed by the insurer ought to have been produced as a witness to support the case set up in the additional written statement. Not having produced any of them as a witness, we are inclined to the view that the finding of the tribunal, based on the version of the P.W.- 2 before it, is not so perverse to warrant an interference in appeal. We, therefore, concur with the tribunal that it was the offending vehicle which had been involved in the accident ultimately leading to the tragic death of the victim. 28. For the reasons as aforesaid, FMA 3125 of 2013 stands dismissed. 29. Upon due consideration of the cross-objection filed by the claimants, we do not see sufficient reason to disallow the claims as raised therein. 30. The tribunal indeed committed an error in reckoning Rs.17,971/- as the net salary of the victim. If only the tribunal had adverted its attention to Ext.8, the net salary for the purpose of computation of compensation ought to have been reckoned as Rs.29,754/-. 31. 30. The tribunal indeed committed an error in reckoning Rs.17,971/- as the net salary of the victim. If only the tribunal had adverted its attention to Ext.8, the net salary for the purpose of computation of compensation ought to have been reckoned as Rs.29,754/-. 31. We shall, therefore, re-assess the compensation payable to the claimants bearing in mind the conclusions recorded in paragraph 61 of the decision in Pranay Sethi (supra) in the manner as follows : - Sl. No. Heads Calculation (i) Income Rs.29,754.00per month (ii) Loss of dependency : Rs.29,754.00 x 12 =Rs.3,57,048.00 (iii) Future prospect: Rs.3,57,048.00 x 30% =Rs.1,07,114.40 + Rs.3,57,048.00 =Rs.4,64,162.40 (iv) Less 1/3rd on account of personal and living expenses : Rs.4,64,162.40 Rs.1,54,720.80 = Rs.3,09,441.60 (v) Compensation after multiplier of 15 is applied Rs.3,09,441.60 x15 = Rs.46,41,624.00 (vi) Loss of consortium Rs.53,240.00 (vii) Loss of estate Rs.20,000.00 (viii) Funeral expenses Rs.20,000.00 Total Compensation Rs.47,34,864.00 32. The claimants are, thus, entitled to compensation in a sum of Rs.47,34,864.00 (Rupees forty-seven lakhs thirty-four thousand eight hundred and sixty-four) together with interest @ 7% per annum from the date of filing of the claim application before the tribunal till payment is effected. 33. It has been ascertained from Mr. Pahari that Rs. 21,66,020/- awarded by the tribunal has been secured with the Registrar General of this Court. In that view of the matter, the balance sum of Rs.25,68,844/- (Rupees twenty-five lakhs sixty-eight thousand eight forty-four) together with interest @ 7% per annum on the entire sum (Rs.47,34,864/-) shall be deposited with the Registrar General within two months from date whereafter the claimant no.1 shall be entitled to seek disbursal thereof in accordance with law. 34. The cross objection is thus allowed, without any order for costs. 35. Office is directed to send back the lower court records forthwith. 36. Photostat certified copy of this order, if applied for, be furnished expeditiously.