The main legal point established in the judgment is the requirement of cogent evidence to prove contributory negligence and the application of the multiplier and future prospect for compensation.

Heard Mr. B.K. Purkayastha, learned counsel for the appellant. Also heard Mr. D. Saikia, learned counsel for the respondent Nos. 1, 3, 4 & 5, Mr. B. K. Jain, learned counsel for the respondent No. 6 and Mr. K. Baruah, learned counsel for the respondent No. 8.

2. This appeal is by the claimant against the judgment and award dated 18-07-2012 passed by the MACT No. 1, Kamrup, Guwahati in MAC Case No. 2199/2008.

3. The brief facts of the case are that one Milanjyoti Lachit was proceeding by riding his motorcycle and when he reached a place near Beer Lachit Borphukan College, the offending vehicle bearing registration No. AS-23/G-1048, which was coming from the opposite direction in a high speed, having lost control, moved to the wrong track and hit the motorcycle of the deceased. As a result of the accident, the victim Milanjyoti Lachit sustained injury and died.

4. The wife and children being the legal representatives of the deceased filed a claim petition before the tribunal and the learned tribunal by the impugned judgment, awarded a compensation of Rs.18,87,000/- along with interest @ 6% from the date of filing of the claim petition.

5. Aggrieved, the appellant Insurance Co. preferred the instant appeal praying for reduction of the compensation.

6. Learned counsel, Mr. Purkayastha for the Insurance Co. assailed the impugned award basically on the following grounds (i) the deceased who was riding the motorcycle also contributed to the accident, which was not taken into consideration by the learned tribunal, though, the accident occurred due to head on collision of both the vehicles. (ii) multiplier in view of the age of the deceased ought to have been taken 15, whereas, learned tribunal applied multiplier 16 which inflated the award. (iii) The learned tribunal added 50% of the salary as future prospect, which ought to have been 40% as per decision of the Apex Court in National Insurance Co. Ltd. –VS-Pronoy Setty and Ors. reported in (2017) 14 SCC 663.

7. Ground No. 1.

The claimants stated in the claim petition that the deceased was proceeding on the left side of the road and the accident occurred due to rash and negligent driving of the offending vehicle. In support of the claim, the claimant examined one PW 2, Huntu Phukan, who was an eye witness of the occurrence. PW 2 stated, that while the victim was proceeding by riding his motorcycle, through the extreme side of the road, the offending oil tanker, which was coming in excessive speed, moved to the wrong lane and hit the motorcycle of the victim and the accident took place solely due to the fault of the driver of the oil tanker. The PW 2 further stated that initially the oil tanker hit another vehicle and when it was trying to run away in a rash and negligent manner, hit the motorcycle of the deceased. The evidence of this witness remained uncontroverted in the cross-examination. Evidently the driver and owner of the offending vehicle neither filed any written statement, nor adduced any evidence. The driver of the offending vehicle, who had personal knowledge about the accident, could have come to the witness box to controvert the evidence and pleadings of the claimants. But the driver of the offending vehicle neither filed any written statement, nor adduced any evidence to challenge the evidence and pleadings of the claimants that the accident occurred solely due to rash and negligent driving of the offending vehicle. When there was pleadings and candid evidence of the claimants, that the accident occurred solely due to rash and negligent driving of the offending vehicle and the owner/driver of the offending vehicle neither filed any written statement, nor came to the witness box to challenge the pleadings and evidence of the claimants, there could be no presumption of contributory negligence on surmises and conjectures. Negligence or contributory negligence