JUDGMENT

Date : 16-11-2022 Heard Mr. H. Buragohain, learned Counsel appearing on behalf of Mr. S.S. Sharma, learned counsel for the appellants. Also heard Mr. M.

Islam, learned Counsel appeared on behalf of the respondents.

2. This is an application under section 173 of Motor Vehicle Act of 1988, filed by claimant/appellant against the judgment and order dated 09.02.2018, passed in MAC Case No. 1140/2014, by the learned Member MACT, No. 3, Kamrup (M), Guwahati awarding an amount of Rs.11, 10,000/- along with 7.5% interest per anum from the date of filing of the written statement till realisation.

3. Brief facts leading to this case is that the claimant/respondent Smt. Bulbuli Borphukan along with two others filed the application under section 166 of Motor Vehicle Act 1988, claiming compensation on the ground of death of her son in a motor vehicle accident, which occurred on 04.11.2013, due to rash and negligent driving of the driver of the vehicle bearing registration No. AS-06-L-8914.

4. The opposite party No. 1 i.e the owner cum driver of the motorcycle by filing his written statement denied the claim of the claimant and also took the plea that the deceased son of the claimant No. 1 and 2 was a nd student of B. Barooah Collage of 2 Semester T.D.C. Arts and as such, the income shown by them in respect of the deceased amounting to Rs.10,000/- is absolutely false.

5. The claimant examined herself as PW1 and also relied on some documents. On the other hand, the owner/opposite party No. 1 adduces his evidence as DW1. After hearing the arguments from both sides and considering the evidence on record, the learned Member, MACT Claims Tribunal No. 3. Kamrup (M) Guwahati vide its judgment and order dated 09.02.2018, awarded the compensation amounting to Rs. 11, 10,000/- along with 7.5% interest per anum from the date of filing of the written statement till realisation of the same.

6. The opposite party No. 1 owner cum driver of the offending vehicle was directed to pay the awarded amount to the claimant as the vehicle was not insured at the time of relevant accident. Further, it is stated that the appellant is considered to be the driver of the bike merely because police registered the case against him showing him to be the driver of the bike at the relevant time of the accident. Though, there was no witness, who saw the appellant riding the motorcycle, and police implicated him as accused and filed charge-sheet against him in absence of any evidence and also disbelieving his claim that the deceased has taken his bike to meet somebody. Therefore, the award passed by the learned Member MACT is illegal unjust and also without any basis and hence, interference of this Court is necessary. Accordingly, the appellant prayed to set aside the award passed by the learned Member MACT No. 3 Karmrup (M).

7. It is submitted by the learned counsel for the appellant that at the relevant time of accident, the deceased was a Degree student and was not earning member but the learned Member MACT, considered his monthly income at Rs. 10,000/- without any documentary evidence and without any basis. More so, the claimants are the service holder and they are getting handsome salary and at the relevant time of accident, claimant/respondent was earning Rs.80,000/- per month. The appellant has already deposited the 50% of the awarded amount i.e Rs.5,55,000/- as per direction of the Court. The learned Court below also considered in the judgment and order that the claimant were not the dependent of the deceased and it is also considered by the learned Court below that the claimant could not prove the income of the deceased by furnishing the relevant documents in that regard. But, the learned Member MACT, considered the income of the deceased at Rs. 10,000/- per month and accordingly, calculated the award which came to Rs.11,10,000/-. Without any documentary evidence or without any basis the learned Court below considered Rs.10,000/- per month as the monthly income of