JUDGEMENT AND ORDER (CAV)

The instant Appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed against the judgment and award dated 24.01.2023 passed by the learned Motor Accident Claims Tribunal, Tuensang, Nagaland, in MAC Case No. 03/2021 by which the appellant was directed to pay an amount of Rs.59,07,081/- along with interest at 7.5% per annum from the date of filing the claim petition. The appellant herein is the Cholamandalam MS General Insurance Company Limited.

2. Before going into the merit of the case, the facts leading to the claim of the respondents/claimant is set out in brief. On 10.01.2020 while the deceased was waiting on the road side of NH 15 near Sonapur High School, the offending vehicle bearing registration No. AS-07-AC/6442 being driven at high speed and in a reckless manner coming from North Lakhimpur side towards Laluk knocked down the standing deceased with great force. Resultantly, the deceased sustained grievous injuries and succumed to his injuries on 11.01.2020 while taking treatment at Dibrugarh. The wife and children of the deceased filed the claim petition against the respondents claiming compensation jointly and severally.

3. The insurer/appellant was impleaded as respondent No. 3 and contested the claim petition, denying the liability to pay the compensation. To establish the cause of the accident as rash and negligent driving, the claimants deposed before the learned tribunal and exhibited the chargesheet with regard to the accident that occurred on 10.01.2020. The appellant did not examine any witness. The tribunal on consideration of the entire matter and finding all relevant documents pertaining to the offending vehicle to be valid at the time of the accident granted compensation as stated hereinabove.

4. Heard Mr. Taka Kichu, learned counsel for the appellant. Also heard Mr. B.N. Sarmah, learned counsel for the claimant/respondents.

5. Before this Court, the learned counsel for the appellant submits that all the sons of the deceased had attained majority as they are 38 years, 35 years and 20 years respectively, and as such, the deduction of 1/3 should have been made while calculating the compensation. Another ground which the appellant had taken is that the I.O of the case was not examined and therefore, the rash and negligent driving of the driver of offending vehicle was not proved. The learned counsel submits that the Tribunal should have at least considered the average income basing on the salary slip of the deceased. In view of the above submissions, the learned counsel prays that the impugned judgment and order dated 24.01.2023 passed in MAC Case No. 03/2021 should be quashed and set aside and/or be remanded back to the learned tribunal for a fresh determination of the compensation amount

6. Refuting the arguments of the appellant, the learned counsel for the claimant/respondents, Mr. B.N. Sarmah submits that the instant appeal is not maintainable as no steps were taken by the appellant under Section 170 of the Motor Vehicle Act before the Tribunal in order to enable the appellant to assail the judgment of the tribunal on all grounds as raised in the instant appeal. In the absence of an order under Section 170 of the Motor Vehicle Act, the appellant can be confined only to the statutory defenses as provided under Section 149 (2) of the MV Act/ new Section 150(2). To support his submissions, reliance was placed on National Insurance Company Ltd, Chandigarh -versus- Nicolletta Rohtagi & Ors’ (2002) 7 SCC 456.

7. Learned counsel also submits that the rash and negligent driving of the driver of the offending vehicle has been established by the evidence of PW-2 & PW-3 and also by the chargesheet which was exhibited before the tribunal. He has submitted that the non-examination of the I.O is not fatal as the other evidence adduced by the claimants has already proved the factum of accident and the fact regarding the rash and negligent act of the driver.

8. Another argument wh