1. Heard Mrs. R.D. Mozumdar, learned counsel appearing for the appellant as well as Mr. R. Dey, learned counsel appearing for the respondents.

2. This is an appeal under Section 173 of the MV Act, 1988, against the judgment and award dated 18.06.2011, passed by the learned Member, M.A.C. Tribunal, Kamrup (M), Guwahati in MAC Case No. 45/2008.

3. The brief facts of the case is that on 15.01.2008, one Hitesh Kalita was proceeding from Guwahati to Nalbari driving a motorcycle bearing registration No. AS-01/T-0276 which met with an accident at Dadara. He sustained grievous injuries and died on the same day. Both the parents of the deceased, namely, Smt. Anjali Kalita and Sri Hari Chandra Kalita filed an claim petition under Section 163A of the Motor Vehicles Act (MVA for short), praying for compensation of Rs.6 lakhs along with interest @ 9% from the date of the filing of the claim petition till award. The owner of the vehicle was the brother of the deceased, namely, Sri Jitu Kalita. At the time of the accident, the said motorcycle was covered by valid package policy insurance. The appellant contested the case by filing their written statement as well as additional written statement. Upon the pleadings of the parties the following issues have framed in the case:

(i) Whether the victim Hitesh Kalita died in the alleged accident dated 15.01.2008, arising out of use of the motor vehicle No. AS 01/T-0276?

(ii) Whether the present claim petition by the legal representatives of the deceased, Hitesh Kalita, against the insurance co. is maintainable?

(iii) Whether the claimants are entitled for compensation as claimed for? so, from whom it may be recoverable and to what extent?

4. While the owner of the vehicle did not contest the case, the claimant’s side examined the claimant No. 1, Smt. Anjali Kalita as PW.1 and the respondent’s side examined one Sri Rabin Kr. Das, working as Senior Assistant in the appellant’s company as DW.1. The claimant witness No. 1 in course of her cross-examination by the appellant admitted that her elder son, the O.P. No. 1 therein was the owner of the offending vehicle. DW.1 also deposed that the deceased was the brother of the insured and that as per the policy, risk of the death of the deceased was not covered. While the claimant witness No. 1 exhibited accident information report (Exbt.1), certified copy of the post mortem report (Exbt.2), income certificate (Exbt.3) and driving licence (Exbt.4), the DW.1 proved the copy of the insurance policy (Exbt.A). The learned trial court after appreciating the evidence on record answered the issue No. 1 in the affirmative by holding that the deceased had died in an accident involving the motorcycle registration No. AS-01/T-0276.

5. As regards issue No. 2, the learned Tribunal after discussing referred to the case of (i) Oriental Insurance Co. Vs. Rajni Devi (2008) 5 SCC 736, (ii) Ningamma and another Vs. United India Insurance Co. Ltd. 2009 ACJ 2020 (SC), (iii) Rajasthan State Transport Corporation Vs. Kailashnath Kuthari, AIR 1997 SC 3444 and (iv) United India Insurance Co. Ltd. Vs. H. Lahmingliana, 2006 (2) GLT 538, held that there was there was no pleadings or evidence regarding violation of any condition of the policy, for enabling the insurer from escaping the liability under the policy, and by further holding that the case of Rajni Devi (supra) and Ningamma (supra) has no application in the case and held that the claim petition filed by the legal representatives of the deceased was maintainable and the issue No. 2 was decided in favour of the claimants/respondents No. 1 and 2.

6. As regards issue No. 3, the learned Tribunal by referring to the provisions of Section 163A of the MV Act, accepted the age of the deceased as 24 years old and the monthly income of the deceased was accepted as Rs.3,000/- after considering his salary slip (Exbt.3) and after deducting one third amount on account of personal expenses of the deceased, his loss of dependency ca