C.R. Sarma, J.

1. This appeal, under Section 173 of the Motor Vehicles Act, 1988 (for short, the MV Act), is directed against the judgment and order, dated 11.05.2010, passed by the learned Member, Motor Accident Claims Tribunal, Tuensang, in MAC Case No. 1/2009, whereby the learned Member, dismissed the claim made by the appellants. The material facts, which have led to disposal of this appeal, may, in brief, be stated as follows:

The claimant No. 1's husband late Rikhum Yimchunger (hereinafter called 'the deceased'), who was the father of the appellant Nos. 2, 3, 4 and 5, was a driver of the 3rd Nagaland Armed Police (hereinafter called the 'NAP'), under the Police department of Nagaland. On 29.10.2008, he was asked to drive the unit vehicle No. NL-11-0677 (M/TATA), which was attached to C'Coy to Pungro and proceed towards Bn. Hqrs., Tuensang for bringing salary and ration. Accordingly, the deceased, along with other accompanying Police personnel, proceeded to Tuensang. The road, in a place, in between Seikur and Wathors village, was found to be unmotorable due to heavy mudslide. The deceased after stopping his vehicle, with the assistance of the accompanying Police personnel, cleared the mud and taking measurement of the width of the affected stretch of the road, made attempt to cross the road, leaving behind the accompanying Police persons. Unfortunately, while crossing the affected portion of the road, a boulder below the rear wheel of the vehicle had rolled down as a result of which, the rear wheel of the vehicle skidded and the vehicle had fallen down in to a deep gorge. Due to the said vehicular accident, the deceased succumbed to the injuries, sustained by him.

In view of death of the deceased, the appellants, being his legal representatives, filed the claim petition under Sections166 and 140 of the MV Act, seeking compensation of Rs. 15,00,000/-.

2. The claimants contended that the accident occurred due to negligence on the part of the Govt. of Nagaland, in maintaining the road and that the deceased was on his official duty to collect ration and salary for Police persons. It has also been stated that the respondents, being the owner of the concerned vehicle, were liable to pay compensation for the death of the deceased i.e. predecessor-in-interest of the appellants/claimants, in connection with the said vehicular accident.

3. The respondents, by filing a written statement, contested the claim of the appellants. The contesting defendants, in their written statement, averred that the accident took place due to the negligence of the deceased and as such, the answering respondents, for no fault on their part, were not liable to pay any compensation, as claimed by the claimants. In their written statement, the contesting respondents categorically stated that the deceased, knowing well about the consequence of the danger of the risk taken, in crossing the affected portion of the road, displayed negligence by making attempt to cross the road, without allowing other occupants to board the vehicle.

4. According to the answering respondents, the accident took place due to the sole negligence, on the part of the deceased and as such, the legal heirs of the deceased are not entitled to get any compensation from the respondents. The respondents further stated that, due to death of the sole earning member of the family, the brother of the deceased was appointed under the Scheme, namely, 'Die-in-Harness', to give relief to the family of the deceased. Fact remains that Rs. 50,000/- (Rupees Fifty Thousand) only was paid as no fault liability.

5. Upon pleadings of both the parties, the following issues were framed for decision:

(i) Whether the claim petition is maintainable in the present form?

(ii) Whether the accident was the result of rash and negligent driving of the deceased?

(iii) Whether the department is vicariously liable against the deceased?

(iv) Whether the claimants are entitled to any compensation? If so, to what extent and