No.349/2017 was registered.

Thereafter, the respondent No.1 herein filed one claim petition under Section 166/140 of the M.V. Act against the owner, driver and insurer of the offending auto rickshaw claiming a sum of Rs.18,50,000/- under different heads. The respondent No.1 herein becomes permanently disabled due to the accident which affects his future prospect also.

The appellant herein contested the said petition by filing written statement. The owner and driver of the said auto rickshaw did not contest the petition. The appellant herein had taken a stand that the petition is not maintainable and the statements and averment made in the claim petition are false and the insurer of the motorcycle was not impleaded in the case.

Upon the aforesaid pleadings, the learned Tribunal has framed following issues:-

(i) Whether the claimant got injury on 02.09.2017 at about 3:30 p.m. at Kekankuchi Chowk due to rash and negligent driving by the driver of the offending vehicle No.AS-14C-4826?

(ii) Whether the claimant is entitled to get any compensation as prayed for, and if so, to what extent and from whom?

(iii) To what other relief or reliefs the claimant is entitled to?

Thereafter, taking the evidence of the claimant and hearing learned Advocates of both the parties, the learned Tribunal has awarded the sum of Rs.8,57,900/- as compensation with interest @6% per annum from the date of filing of the claim petition.”

4.

Being aggrieved, the appellant preferred this appeal on the following grounds:-

(i) That the learned Member failed to appreciate the fact that in absence of any reliable evidence to prove the income of the claimant, who was alleged to be a mason, the income cannot be presumed to be Rs.12,000/- per month and this finding of the learned Member suffers from non-application of mind, as at the relevant point of time the claimant was barely 21 years old and at such an young age one cannot become a skilled person like a mason.

(ii) The learned Member has also failed to appreciate that the claimant failed to prove the occupation and the income from that occupation. He did not adduce any convincing evidence to prove his income. In absence of any reliable evidence, oral or documentary to prove the income of the claimant, the learned Member ought not to have considered the income of the claimant at Rs.12,000/- per month.

(iii) The learned Member erred in awarding 40% towards addition of future prospect in as much as an addition is applicable only in cases where there is likelihood of actual loss of future earning because common injuries like fracture do not always impact income and such an erroneous addition towards future prospect of the claimant had led to overcompensation to the claimant. Under such circumstances, it is contended to quash the impugned judgment and award dated 06.01.2020.

5.

Mr. Goswami, learned counsel for the appellant submits that the appellant is aggrieved only by the finding of the learned Member, MACT, Nalbari, in respect of monthly income of the claimant. Mr. Goswami submits that at the relevant point of time i.e. in the year 2017, the age of the claimant was 21 years and he claimed his profession as mason, but he could not produce any document in support of his profession and also in respect of his income. And referring to a notification issued by the Labour Commissioner, Assam, vide Memo No.MWC.3/93/Pt-II/13408-09, dated 13.12.2018, Mr. Goswami submits that at the relevant point of time, the income of a semi-skilled worker was Rs.8,922/- and a skilled clerical worker was Rs.11,152/- and in view of the aforementioned notification, the learned Member ought to have taken the income of the claimant at Rs.8,600/- and the learned Member without considering the aforesaid aspect has assessed the monthly income of the claimant at Rs.12,000/- and such a finding being recorded without any evidence and without any documentary proof is arbitrary and illegal and therefore, it is contended to set aside the impugned judgment and awar