Sonam Phintso Wangdi ORDER
Sonam Phintso Wangdi, J.
1. This appeal is directed against the impugned judgment passed in M.A.C.T. Case No. 21 of 2006 dated 10-9-2007 by the Learned Member, Motor Accident Claims Tribunal, East and North Sikkim at Gangtok, awarding the claimants death compensation of Rs. 7,72,500.00 with interest @ 10 per annum from the date of filing of the claim petition. Briefly stated, the facts of the case are that one Kuldeep Gurung died in a motor accident on 30-9-2005 at Traffic Stand, North AOC NH 39, Imphal, Manipur, at around 8.40 p.m. when the vehicle, a canter bus, in which he was travelling, dashed on the traffic stand due to the rash and negligent driving of the driver plying the canter bus, causing the death of the said Kuldeep Gurung and another person named Prasan Pradhan on the spot. Apart from the deceased persons, 15 others also were injured and were evacuated to RIMS Hospital and Raj Poly Clinic. North AOC for medical treatment. It appeals that the deceased was one of the 17 badminton players representing the State of Sikkim in a tournament that was being held at D.M. College in Manipur. The unfortunate accident took place on 30-9-2005 as the players were returning from D.M. College to Khuman Lampak aboard the ill-fated bus after participating in the tournament. Claim for compensation under Section 166 of the Motor Vehicles Act, 1988 for the death of the deceased Kuldeep Gurung was preferred before the Ld. Motor Accident Claims Tribunal, East Sikkim at Gangtok, by the father and mother of the deceased who are the respondent Nos. 1 and 2 herein.
2. The claim was resisted by the appellant, New India Assurance Co. Ltd. before the learned Tribunal as the respondent No. 2. The respondent No. 1, one Md. M. Burhanuddin Khan, the owner of the vehicle, was proceeded ex parte having failed to appear despite notice by substituted service. In the written objection that was filed on behalf of the appellant as the respondent No. 2, all objections available under the law were taken. Apart from denying the accident having taken place, the appellant disputed the claim made by the claimants that the deceased was a bright student and a sports person. In fact the appellant denied the very existence of both statutory liability and its contractual obligation to pay compensation to the claimants or to indemnify the owner of the vehicle. It appears that in support of their claims, the claimants/respondents had examined two witnesses and exhibited as many as 11 documents. Claimant No. 1 examined himself as PW1 and one Shri Samir Gurung, as PW2 who was a co-passenger in the ill-fated vehicle on the day of the accident. The appellant herein chose not to adduce any evidence. On the basis of the pleadings of the parties, the learned Tribunal framed just one issue which is as follows:--
Whether the claimants are entitled to the compensation and if so, to what extent?
3. After considering the pleadings of the parties and the evidence available in the records which included the documents exhibits 1 to 11, the learned Tribunal decided the issue in favour of the claimants, i.e. the respondents herein, and awarded Rs. 7,72,500.00 as compensation by the impugned judgment dated 29-8-2007.
4. Before this Court the appellant seeks to assail the said impugned order primarily on the ground that the deceased being a non-earning person prior to the accident, his income ought to have been computed by strictly following the second schedule to the Motor Vehicles Act, 1988. It was the case of the appellant that fixing the notional income of the deceased at Rs. 6,000.00 per month was based on mere surmises and conjectures when it ought to have been rational and arrived at by following a judicious approach.
5. At the time of the arguments, Mr. A.K. Upadhyaya, learned Senior Advocate, appearing on behalf of the appellant, submitted that it is a well established position of law that the second schedule ought to be followed while awarding compensation under the Act against death and injuries. It has been laid down by various decisions of the Supreme Court that even in cas........