JUDGMENT : 1. The present appeal has been raised by the Insurance Company challenging the judgment and order dated 21.09.2004, passed by the Motor Accident Claims Tribunal (Aux.), Surendranagar in MACP No.606 of 1994 on the ground of negligence as well as quantum. It is a case of minor claimant. 2. The facts as could be culled out from the impugned judgment are that the applicants of MACP No.606 of 1994 and MACP No.605 of 1994 i.e. son and mother were travelling towards their village Khamblav from Limbadi in a passenger rickshaw bearing No.GJ-13-T-011, on 29.04.1994, at about 8:30 in the evening, when they reached Panshina Road between village Untadi and Chocky on Limbdi, a Tractor bearing No.GJ-13-1201 came from the opposite direction, and it is stated that it collided with each other. As a result of the accident, both the applicants sustained grievous injuries. The rickshaw was insured with the present appellant and the Tractor was insured with M/s. Oriental Insurance Co. Ltd. 3. Learned advocate Ms. Kirti S. Pathak for the Insurance Company stated that the accident was due to sole negligence of the Tractor driver, which was clearly evident from the copy of FIR. Ms. Pathak stated that the learned Tribunal has attributed 60% negligence to the tractor driver, while 40% negligence has been attributed to rickshaw driver, which is contrary to the evidence on record. 3.1 Advocate Ms. Pathak submitted that the FIR, which came to be lodged after the accident, clearly reveals that the tractor came from the opposite direction and on the wrong side dashed the rickshaw. 3.2 Ms. Pathak further stated that the learned Tribunal erred in coming to the conclusion of composite negligence of drivers of both the vehicles based on the panchnama and the statement of claimant in the cross examination to observe that both the vehicles were driven fast. Ms. Pathak stated that the driver of the Tractor has not stepped into the witness box, and, therefore an adverse inference ought to have been drawn against him. 4. Learned advocate Mr. Maulik Shelat while relying upon the evidence recorded before the Tribunal of the claimant eye witness and relying on the judgment of this High Court in New India Assurance Co. Ltd. Vs. Siraz Fatehsinh Mansoori & Ors., reported in 2023 ACJ 1319 , and judgment in case of National Insurance Co. Ltd. Vs. 4. Learned advocate Mr. Maulik Shelat while relying upon the evidence recorded before the Tribunal of the claimant eye witness and relying on the judgment of this High Court in New India Assurance Co. Ltd. Vs. Siraz Fatehsinh Mansoori & Ors., reported in 2023 ACJ 1319 , and judgment in case of National Insurance Co. Ltd. Vs. Chamundeswari and others, reported in 2021 ACJ 2558 , submitted that the evidence, which has been recorded before the Tribunal during the course of the trial has to be given more weightage, and, hence, the Tribunal has rightly considered the statement of eye witness the claimant, and has come to the right conclusion in deciding the negligence aspect. 5. The claimants of MACP No.606 of 1994 and MACP No.605 of 1994, both are mother and son, who were travelling in the passenger rickshaw and as per the evidence of the mother, she had given the complaint Exh.-46, before the police at Limbdi Hospital. In the FIR she has stated that the accident has occurred because of negligence of the driver of Tractor. The FIR was registered at 10.15 hours at night and in accordance to the record next date i.e. on 30.04.1994, at about 7 to 7.30, the panchnama was drawn, which had come on record at Exh.47. 5.1 The Division Bench of Madhya Pradesh High Court in the case of Dhanwanti and Others Vs. Kulwant Singh and Ors., reported in 1994 ACJ 708 , had observed that F.I.R. is not a substantive piece of evidence; it can be used only for the purposes of corroboration or contradiction of the maker only. In paragraph no.10 of the said case, it has been noted as under: “10. Coming to the other contention that the deceased was travelling as a passenger and, therefore, the Insurance Company was not liable to pay any compensation, it has also no merit. True, the F.I.R. (Ex. D/2-C) and the statement of the Investigating Officer gives a version which support the case of the Insurance Company, but even assuming that the F.I.R. is a public document, but it is the rule of law that it is not a substantive piece of evidence. It can be used only for the purposes of corroboration or contradiction of the maker only. It can be used only for the purposes of corroboration or contradiction of the maker only. The maker having not been examined by either side, the statement of A. S. Yadav carries no weight as he only investigated the occurrence. He is not an eyewitness to the occurrence. His testimony is of hearsay evidence, therefore, the conclusions which he drew after investigation cannot be taken into consideration unless supported by proper material, It is well settled proposition Of law that evidence recorded in criminal Court and the findings arrived at thereon should not be used in claim cases. Such evidence, for the purposes of claim cases is inadmissible. 5.2 The learned Tribunal has noted that since the panchnama was drawn on the very next day, thus, it was quite natural that the position of both the vehicles would be as it is as had been at the time of accident. The complainant mother had deposed before the Tribunal that they were going in the rickshaw from Limbdi towards village Khamblaw and in between Limbdi and Utdi village, the Tractor, which was coming from the opposite direction has rammed the rickshaw, and according to her both the vehicles were in full speed. She has affirmed in the cross-examination that the accident has occurred during the night hours, and, therefore only after the accident, she could realize that the vehicle from the opposite side had dashed the rickshaw. She had seen the opposite vehicle dashing the vehicle in which they were occupants and had also categorically stated that she had not seen anything prior to that, and had admitted that she was not knowing as to how the vehicle had come from the opposite direction. She had declined to the suggestion that the accident had occurred because of the rickshaw driver, while she had stated that rickshaw driver was driving the rickshaw carefully, and the Tractor had dashed the rickshaw. According to her, the Tractor driver had suddenly come on the wrong side. 5.3 The learned Tribunal, thus, to appreciate the evidence has taken into consideration the cross-examination, where the claimant states that the negligence is of the Tractor driver. Learned Tribunal, thereafter had further compared the evidence of the mother with that of the son, recorded at Exh.59 who at the time of the accident was minor, the Tribunal had made a minute analysis. Learned Tribunal, thereafter had further compared the evidence of the mother with that of the son, recorded at Exh.59 who at the time of the accident was minor, the Tribunal had made a minute analysis. The son, in his examination in chief, has stated that both the vehicles had dashed from the opposite side. While in the cross examination, he had admitted that he came to know about the accident only after the opposite vehicle dashed the rickshaw; thereby stated that he had not seen the Tractor prior to the accident. In the cross-examination by the opponent no.6 – New India Assurance Co. Ltd., it was admitted by the witness that the rickshaw driver was driving the rickshaw carefully and the driver of the Tractor had come on the wrong side and dashed the rickshaw. On the evidence on record, the Tribunal has concluded that both the vehicles had dashed from opposite side. Taking into consideration the size of the vehicle and appreciating the contents of the FIR, the learned Tribunal has considered that the accident had occurred because of negligence of both the vehicles, hence, attributed 40% negligence to the rickshaw driver, while 60% to that of the Tractor driver. 5.4 The FIR was given by the claimant- complainant and the facts of the FIR was challenged during the cross examination to the claimant. The evidence had been noted by the Tribunal, both the claimants were eye witnesses to the accident, hence, on appreciation of the evidence of both the claimants, along with the FIR, and panchnama, it could be concluded that driver of both the vehicles were negligent in driving. The claims Tribunal has not to completely rely on the FIR and charge-sheet, the appreciation of evidence in claims Tribunal is different than in the criminal court. The claims Tribunal can on the evidence adduced can come to an independent finding, while appreciating the evidence to find the contributory negligence of the other offending vehicle. Charge-sheet would generally be filed against one vehicle driver. But in case where more than one vehicle is involved, then individual act of the vehicle driver has to be examined. This Court also, on the evidence so appreciated by the Tribunal, comes to the same conclusion. Charge-sheet would generally be filed against one vehicle driver. But in case where more than one vehicle is involved, then individual act of the vehicle driver has to be examined. This Court also, on the evidence so appreciated by the Tribunal, comes to the same conclusion. 5.5 There is no rebuttal evidence given by way of examining the rickshaw driver or the Tractor driver, hence, as laid down in the judgment of Chamundeswari and Others (Supra), if evidence before the Tribunal runs contrary to the contents of First Information Report, evidence which is recorded by the Tribunal during the trial has to be given weightage, and the Tribunal can have its own finding on the appreciation of evidence. 6. The judgment of MACP No.606 of 1994, which has been challenged by the appellant was a minor, the age of the claimant was considered by the Tribunal as 13 years at the time of accident. The assessment of the compensation is done considering the earning capacity of the minor. The Tribunal had assessed 30% disability for the body as a whole and has granted total compensation of Rs.4,33,000/-. The Tribunal has assessed compensation on various heads. 7. In Master Mallikarjun vs. Divisional Manager, National Insurance Company Limited And Another, reported in [ (2014) 14 SCC 396 ], the Hon'ble Apex Court while considering the claim by a victim child, has categorically held that it would be unfair and improper to follow the structured formula as per the Second Schedule to the M.V. Act for more than one reasons. The relevant observations are as under:- “8. While considering the claim by a victim child, it would be unfair and improper to follow the structured formula as per the Second Schedule to the Motor Vehicles Act for reasons more than one. The main stress in the formula is on pecuniary damages. For children there is no income. The only indication in the Second Schedule for non- earning persons is to take the notional income as Rs.15,000/- per year. A child cannot be equated to such a non-earning person. Therefore, the compensation is to be worked out under the non- pecuniary heads in addition to the actual amounts incurred for treatment done and/or to be done, transportation, assistance of attendant, etc. A child cannot be equated to such a non-earning person. Therefore, the compensation is to be worked out under the non- pecuniary heads in addition to the actual amounts incurred for treatment done and/or to be done, transportation, assistance of attendant, etc. The main elements of damage in the case of child victims are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs. The compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. Appropriate compensation for disability should take care of all the non-pecuniary damages. In other words, apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation, etc.” 7.1 It has been brought to the notice that the yardstick which has been laid in the case of Master Mallikarjun (supra) has not been followed by the Tribunal. In Paragraph-12 of the judgment, the Hon'ble Apex Court has laid down the slab to be followed in the case of minor sustaining permanent disability. “12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick.” 8. Here, in the present case, the Tribunal has considered 30% disability for the body as a whole and in view of the yardstick laid down by the Apex Court upto 30% disability, the minor would be entitled for an amount of Rs.3,00,000/-. The Tribunal has considered 30,000/- for the medical expense, but no documentary evidence was proved in the form of medical bills to prove such expense and on the basis of assumption, the Tribunal has granted Rs.30,000/-. The Tribunal has considered 30,000/- for the medical expense, but no documentary evidence was proved in the form of medical bills to prove such expense and on the basis of assumption, the Tribunal has granted Rs.30,000/-. Since the amount is not supported by the evidence on record, thus, the said amount cannot be granted. 9. Considering that the parents are from labour class, they may have spent time to look after the child. The mother was also injured and, therefore, the father must have dedicated his time to take care of his wife and the minor child, there would be a loss of one month’s income. Considering the date of accident as 29.04.1994, minimum wages at the time of accident, as per the schedule, would be Rs.1,000/-, which would be the loss of income of father. Thus, the compensation would be as under:- Heads Amount Pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience, and discomforts, etc. and loss of amenities in life on account of permanent disability. Rs. 3,00,000/- Discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization. Rs. 1,000/- Total Rs. 3,01,000/- 10. The Tribunal has granted compensation as Rs.4,33,000/-. The Insurance Company may have deposited the amount, thus, Rs.1,32,000/- (4,33,000 – 3,01,000) be refunded back to the Insurance Company with accrued interest on the said amount. If the amount is already given to the claimant, then the same be received by the insurance company by filing execution petition, and, in case, amount is lying before the Tribunal or in FDR then amount be directed to be paid to insurance company and rest of the amount be paid to the claimant. 11. In the result, the appeal is partly allowed. The impugned judgment and award dated 21.09.2004, passed by the Motor Accident Claims Tribunal (Aux.), Surendranagar in MACP No.606 of 1994 stands modified to the aforesaid extent. No order as to costs. Connected Civil Application stands disposed of accordingly. 11.1 Record & Proceedings be sent back to the concerned tribunal.