Kalyan Rai Surana, J.

1. Heard Mr. SK Singh, the learned counsel for the appellant. None appears for the respondents No. 1, 2 & 3 although the names of their learned counsels are duly appeared in the cause-list. This appeal under Section 173 of the Motor Vehicles Act, 1988, is directed against the judgment and award dated 17.03.2010 passed by the learned Member, MACT, Sonitpur, Tezpur in MAC Case No. 222/2002.

2. The case in brief is that on 31.07.2002 at 9:00 PM, while the deceased Poona Keot, who was the brother of the respondents No. 1, 2 & 3, was coming from Mission Chariali to his residence towards Bampar batia, he was knocked down by a scooter bearing Registration No. BR-16-D/2128, near Vartak Tiniali on NH-52, which was coming from the opposite direction. The scooter was being driven by the driver (opposite party No. 2 in the claim case) in a rash and negligent manner. As a result of the accident, deceased suffered grievous injuries on his person. He was shifted to the Kanaklata Civil Hospital, Tezpur, for treatment wherein he succumbed to his injuries. After the accident, the Tezpur PS Case No. 493/2002 under Section 279/304 IPC was registered, corresponding to GR Case No. 1070/2002.

3. In their claim petition, the respondents No. 1, 2 & 3 had stated that the income of the deceased was Rs. 4,500/- per month by doing business and he was aged 27 years. It was stated that the deceased was the only earning member of the family and on his death the family members are facing acute financial hardships. The opposite parties had contested the case by filing their respective written statement.

4. On the basis of the pleadings, the learned Tribunal had framed the following two issues:

"(11) Whether the alleged accident took place due to rash and negligent driving by the driver of vehicle No. BR-16-D/2128?

2) Whether the claimant is entitled to compensation, and if yes, what will be the quantum of compensation and by which of the respondents, this amount shall be paid?"

5. The respondents No. 1(i), 1(ii) and (iii) i.e. the claimants had examined four witnesses and exhibited the following documents:

1) Exhibit-1 is the certified copy of the ejahar; and

2) Exhibit-2 is the post-mortem report of the deceased.

6. The present appellant (i.e. Opposite Party No. 3 in claim petition) had exhibited three documents viz., (i) Exhibit. A-the Written statement of the Dr. Prabin Sarma, who was the Driver of the scooter (opposite party No. 2 in the claim petition); (ii) Exhibit. D-the insurance policy; and (iii) Exhibit. C-the record of GR Case No. 1070/2002.

7. It may be pertinent to mention here that the records of GR. Case No. 1070/2002 marked as Exhibit-C is not found on record. However, at this stage, the learned counsel for the appellant submits that in view of the issues raised by him, the record of Exhibit-C is not required as his arguments is not based on Exhibit-C for the time being. In view of the said submission of the learned counsel for the appellant, this Court has proceeded with the hearing of the matter.

8. In respect of issue No. 1, the learned Tribunal had held that Dr. Prabin Sarma (Opposite Party No. 2 in the claim petition) was driving the offending scooter at the relevant time and due to his rash and negligent driving the accident had taken place resulting in death of the victim. In arriving at the said finding, the learned Tribunal had relied on the evidence of claimant's witnesses. In respect of issue No. 2, it was held that the deceased was unmarried at the time of accident and in absence of any evidence of income of the deceased, the learned Tribunal had assessed the monthly income of the deceased as Rs. 3,000/- per month and after calculating the annual loss of dependency, etc., the total compensation was assessed as Rs. 3,95,000/-. On the basis of the age of the respondent No. 1 (Sri Girish Keot) as 40 years, the l