The entitlement of compensation by a legal representative who is not a dependent is determined by the dependency of the claimant upon the deceased.

ORDER :

1. Heard Mr. S.K. Goswami, learned counsel for the appellant/Insurance Company. However, none appears for the respondents, on call.

2. This is an appeal u/s. 173 of the M.V. Act, 1988, preferred against the judgment, dated 13.01.2009, passed by the learned Member, MACT, Kamrup, Guwahati, in MAC. Case No. 1668/ 2006, whereby a compensation amount of Rs. 3,80,000/- have been awarded to be paid to the respondent, who is stated to be the brother of the deceased.

3. The facts leading to the filing of the instant appeal, briefly stated, are as follows:

On 15.06.2006, while the deceased Jan Mahammad was going on foot at AT Road Near Chaulkhowa Mosque, he was knocked-down by a motorcycle bearing Registration No. AS-06-E-8934. In the said accident, the victim had sustained severe bodily injuries and he, ultimately, succumbed to his injuries at AMCH, Dibrugarh, on the very next day.

4. In the claim-petition filed by the brother of the deceased, it has been stated that the offending motorcycle was driven by one Md. Julea Uddin Ahmed, which was owned by Md. Abdul Kayum, the Opposite Party No. 2 & 3, respectively. The said motorcycle was insured with the Oriental Insurance Co. Ltd. the appellant, herein.

5. It has been further stated in the claim petition that at the time of the death of the deceased, he was aged around 40 years with a monthly income of Rs. 6,000/-. It has been also stated in the claim petition that the offending motorcycle was driven by the motor cyclist in a rash and negligent manner and in high speed, for which, the rider lost control of the said motorcycle, thereby leading to the accident.

6. The owner and driver of the offending motorcycle did not contest the claim.

7. The appellant/Insurance Company resisted the claim filed by the brother of the deceased, by filing a written statement, in which, it was pleaded that their liability to pay any compensation to the respondents would be subject to the condition that the insured bike owner did not violate any condition of the insurance policy.

8. On basis of the rival pleadings, the learned Tribunal had formulated 2(two) issues for determination which are, stated, as under:

1. Whether victim Jan Mahammad expired on account of the injuries sustained by him in the road accident, dated 15-06-2006, involving the Motorcycle bearing Registration No. AS-06-E-8934 and whether the said mishap happened due to rash and negligent driving of the motorcyclist?

2. Whether the claimant is entitled to receive any compensation, and if yes, to what extent and by whom amongst the Opposite Parties, the said compensation amount will be payable?

9. The learned Tribunal while answering both the issues in affirmative, vide the impugned judgment, dated 13.01.2009, awarded the quantum of compensation payable to the claimant by the appellant/Insurance Company, as follows:

10. Assailing the correctness of the award insofar as the ‘annual loss of dependency’ is awarded, Mr. Goswami, learned counsel for the appellant/Insurance Company, contends that as the claim petition was instituted by the brother of the deceased, who was aged about 39 years at that relevant point of time, and also stated to be a vegetable vendor, being not a dependent on the deceased; the learned Tribunal could not have awarded the compensation under the Heading ‘annual loss of dependency’.

11. That apart, Mr. Goswami, learned counsel, also contends that the claimant did not adduce any evidence to prove the accident. In support of his contention, Mr. Goswami, has relied on the decisions of the Hon’ble Apex Court as well as this Court in the case of Smt. Manjuri Bera vs. Oriental Insurance Company Ltd. and Another, (2007) 10