Page No.# 1/20 GAHC030000202025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : MACApp./4/2025 National Insurance Co. Ltd., R/b Branch Manager, Aizawl, Mizoram VERSUS Sh K.Tuchhuana and 5 Ors. F/o K.Lalruatpuia (L), R/o Chhinga Veng, Aizawl, Mizoram 2:Smt Thanchhingi W/o K.Tuchhuana R/o Chhinga Veng Aizawl Mizoram 3:Smt Lalpianhuni D/o K.Tuchhuana R/o Chhinga Veng Aizawl Mizoram 4:Smt Lalchhanhimi D/o K.Tuchhuana R/o Chhinga Veng Aizawl Mizoram 5:Zakaria Ahmed S/o Azzizur Rahman R/o Earligool Patherekandi Near Ahmedpur Jama Masjid Karimganj Silchar Page No.# 2/20 6:Sahid Ahmed S/o Montaj Ali R/o Niz Hafania P.O.Kanai Bazar Karimganj Silcha Advocate for the Petitioner : Mr. Johny L Tochhawng Advocate for the Respondent : Mr. L.H. Lianhrima, Sr.Adv. for R1, R2, R3 & R4 Linked Case : COB(FA)/1/2025 M/S National Insurance Co. Ltd. Aizawl Mizoram VERSUS Sh. K. Tuchhuana and 7 Ors. F/o K Lalruatpuia Chhinga Veng Mizoram 2:Smt Thanchhingi M/o K Lalruatpuia Chhinga Veng Mizoram 3:Smt. Lalpianhuni D/o K Lalruatpuia Chhinga Veng Mizoram 4:Smt. Lalchhanhimi D/o K Lalruatpuia Chhinga Veng Mizoram 5:Zakaria Ahmed S/o Azizur Rahman Earligool Pantherkandi Nead Ahmedpur Jama Masjid Karimganj Page No.# 3/20 Silchar 6:Sahid Ahmed S/o Montaj Ali Niz Hafania P.O. Kanai Bazar Karimganj 7:Sh. Lalthianghlima Unknown 8:Sh. Lalchawisanga R/o Champhai Champhai District Advocate for the Petitioner : Mr. Johny L Tochhawng Advocate for the Respondent : Mr. L.H. Lianhrima Sr.Adv. BEFORE HONOURABLE MR. JUSTICE NELSON SAILO Advocate for the appellant : Mr. Johny L. Tochhawng Advocate for the respondents: Mr. L.H. Lianhrima, Sr. Advocate Ms. Ruth Lalruatfeli Date on which judgment is reserved : 27.05.2026 Date of pronouncement of judgment : 29.05.2026 Whether the pronouncement is of the operative part of the judgment? : No Whether the full judgment has been pronounced ? : Yes Page No.# 4/20 JUDGMENT AND ORDER (CAV) Heard Mr. Johny. L. Tochhawng, learned counsel for the appellant. Also heard Mr. L.H. Lianhrima, learned Senior counsel assisted by Ms. Ruth Lalruatfeli, learned counsel for the respondent Nos. 1 to 4 in the appeal and for the cross objector in COB (FA) No. 1/2025. Both the appeal as well as the cross objection is being disposed of by this common order. 2. The appeal is directed against the Judgment & Award dated 02.09.2024, passed by the Presiding Officer, Motor Accident Claims Tribunal (MACT) Aizawl in MACT case No. 53/2017. At the outset, it may be mentioned herein that this is the second time the appellant is before this Court in appeal against the judgment and award rendered by the Presiding Officer, MACT Aizawl (hereafter referred to as Tribunal in short) on the claim for compensation filed by the respondent Nos. 1 to 4 for the death of one Shri. K. Lalruatpuia, in a road traffic accident through MACT case No. 53/2017. The earlier appeal filed by the appellant was against the judgment and award rendered by Tribunal on 12.06.2019, whereby, a sum of Rs. 39,55,000/- was awarded to the respondent Nos. 1 to 4 as compensation alongwith interest. The appeal was registered and numbered as MAC App. No. 28/2019 and the same was disposed of vide Page No.# 5/20 Judgment dated 09.11.2020, by remanding the matter back to the Tribunal for de novo trial as per the observations and directions given in the said judgment. 3. On remand, the learned Tribunal passed the impugned Judgment & Award dated 02.09.2024 which is challenged in the instant appeal. 4. Brief facts essential for disposal of the instant appeal and the cross- objection is that a claim for compensation was filed by the respondent Nos. 1 to 4 before the Tribunal under Section 166 of the Motor Vehicles Act, 1988 (MV Act) and the same was registered and numbered as MACT case No. 53/2017. Claim was made on account of the death of Shri. K. Lalruatpuia, aged 29 years in a road traffic accident on 10.07.2017 at around 9:50 pm. Around that time, the deceased while riding as a pillion rider in a motorcycle (Apache RTR) bearing Registration No. MZ04-6332 driven by Shri. Lalthianghlima, aged 38 years S/o Shri. Zokhuma was hit by a truck (LPK Tipper) bearing Registration No. AS-IIBC-6999, belonging to Zakaria Ahmed of Karimganj and driven by Sahid Ahmed coming from Bawngkawn towards Rangvamual. The deceased and the rider of the motorcycle were travelling towards Bawngkawn. After the truck hit the motorcycle, it sped away and the deceased and the rider of the bike sustained injuries. They were brought to Civil hospital for medical treatment but Page No.# 6/20 the pillion rider succumbed his injuries on arrival to the hospital. Therefore, on account of the death of the deceased, the appellants filed the claim application claiming compensation under Section 166 of the MV Act. 5. Before the Tribunal, the appellants examined 4 (four) claimant witnesses. CW-1 is the father of the deceased, CW-2 is the Inquiry Officer who made an investigation and submitted the enquiry report and CW-3 and CW-4 are the acquaintance of the deceased who are also in the business of selling betel leaves like the deceased person. The Insurance Company (appellant) did not adduce any evidence, except for cross-examining the claimant witnesses. The Tribunal after giving the rival parties a chance to lead their respective evidence and upon hearing them passed the Judgment & Award dated 12.06.2019 by awarding a sum of Rs. 39,55,000/- alongwith interest @7% per annum from the date of filing of the claim petition till final payment to the respondent Nos. 1 to 4. Aggrieved with the same, the present appellant preferred MAC Appeal No. 28/2019. As already stated, this Court, vide Judgment dated 09.11.2020, remanded the matter back to the Tribunal for de novo trial while setting aside the impugned Judgment & Award dated 12.06.2019. 6. Mr. Johny L. Tochhawng, learned counsel for the appellant submits that Page No.# 7/20 the respondent Nos. 1 to 4 as claimants failed to prove the fact that the accident happened due to rash and negligent driving on the part of the driver of the LPK truck and therefore, the claim application being under Section 166 of the MV Act, the claimants, without establishing rash and negligent driving on the part of the driver of the LPK truck, cannot be awarded compensation in the manner it has been done. He submits that this was precisely the finding of this Court in the earlier round of appeal in MAC Appeal No. 28/2019. Therefore, the matter was remanded back for de novo trial. However, the claimants failed to adduce any cogent and reliable as well as additional evidence to prove the rash and negligent driving on the part of the driver who drove the LPK truck. The Tribunal disposed of the claim by relying upon the judgment and award that was rendered earlier. 7. The learned counsel submits that the only difference now is that the Tribunal has held that there was contributory negligence on the part of the rider of the motorcycle and therefore, fastened the liability upon the appellant Insurance Company and the rider of the motorcycle in the ratio of 80:20. The learned counsel submits that since the rider of the motorcycle did not have a valid driving license, the learned Tribunal ought to have apportioned the liability of the parties concerned in the ratio of 50:50 instead. He submits that there is Page No.# 8/20 no evidence to show that the negligence on the part of the driver of the LPK truck was of a greater degree than that of the rider of the motorcycle, warranting the apportionment of the liability to pay compensation in the manner it was awarded by the Tribunal. 8. The learned counsel further submits that in awarding compensation to the claimants, the Tribunal has taken Rs. 25,000/- as the monthly income of the deceased, which is only exaggerated. He submits that the claimants failed to prove the fact that the deceased was earning Rs. 25,000/- per month by selling beetle leaves. Although the claimants examined CW-3 and CW-4, who were in the same business, but the said witnesses in their cross-examination stated that they did not know the personal income of the deceased exactly as they do not have any personal relationship with him. Since they were also in the business of selling betel leaves, it was their belief that the deceased would have been earning Rs. 25,000/- per month. 9. The learned council submits that since the income of the deceased has not been proved, the learned Tribunal ought to have resorted to the provisions of the Minimum Wages Act, 1948 (Minimum Wages Act). The learned council submits that as per the minimum rate of wages payable to an unskilled worker is Rs. 380/- per day under the Minimum Wages Act and therefore, taking Rs. Page No.# 9/20 25,000/- as the monthly income of the deceased is highly exaggerated and not amenable. The learned council submits that the amount awarded by the Tribunal being highly excessive, the same should be interfered with. 10. The learned council also submits that as per the Apex Court decision in National Insurance Company Limited Vs. Pranay Sethi & Ors., reported in (2017) 16 SCC 680, future prospect of the deceased has to be calculated at 40% of his income and not 50% since the deceased was self-employed. Therefore, the calculation of the Tribunal at 50% of the income of the deceased, being on the higher side, the judgment and award should also be interfered with on this count. The learned council thus submits that under the facts and circumstances of the case, the impugned judgment and award should be set aside. In support of his submission, Mr. Johny L. Tochhawng, learned council has relied upon the following decisions:- (i) Nasib Singh Vs. State of Punjab & Anr., reported in (2022) 2 SCC 89. (ii) Ajay Kumar Ghoshal & Ors. Vs. State of Bihar & Anr., reported in (2017) 12 SCC 699. (iii) Govind Yadav Vs. New India Insurance Company Limited, reported in (2011) 10 SCC 683. Page No.# 10/20 (iv) Surender Kumar Arora & Anr. Vs. Manoj Bisla & Ors., reported in (2012) 4 SCC 552. (v) Smt. Parmawii & 3 Ors. Vs. Shri. C. Lalthangmuana & Anr., reported in 2024:GAU-MZ:213 and (vi) The Judgment dated 25.01.2024 of the High Court of Calcutta in FMA 1153/2011 (Monoranjan Shil & Anr. Vs. The New India Assurance Company Limited & Anr.). 11. Mr. L.H. Lianhrima, learned Senior counsel, on the other hand, submits that in a case under the Motor Accident Claims, the Court cannot adopt a hyper- technical approach but has to discharge the role of parens patriae. He further submits that in claim cases, it is difficult to get witnesses, much less eye witnesses, those extremely strict proof of facts in accordance with provisions of the Evidence Act may not be adhered to religiously. Therefore, some amount of flexibility has to be given to those cases. The learned senior counsel also submits that the Insurance Company did not lead any rebuttal evidence in the claim proceedings whereas the claimants examined the Investigating Officer as CW-2 who deposed before the Tribunal stated that the accident occurred due to rash and negligent driving on the part of the LPK truck. Therefore, the learned senior counsel submits that the Tribunal was fully justified in passing the Page No.# 11/20 judgment and award, awarding compensation to the claimants. Insofar as the calculation of future prospects of the deceased at 50% of his income is concerned, the learned senior counsel submits that the same will have to be @ 40%, as held by the Apex Court in Pranay Sethi & Ors. (supra). In support of his submission, Mr. L.H. Lianhrima, learned Senior counsel has relied upon the following authorities: (i) Kishan Gopal & Anr. Vs. Lala & Ors., reported in (2014) 1 SCC 244 (ii) Mohar Sai & Anr. Vs. Gayatri Devi & Ors., reported in 2018 (3) T.A.C. 18 (S.C.) (iii) Bimla Devi & Ors. Vs. Satbir Singh & Ors., reported in (2013) 14 SCC 345. 12. The learned Senior counsel further submits that the learned Tribunal committed an error in coming to a finding that there was contributory negligence on the part of the rider of the motorcycle solely on the ground that he did not have a valid driving license. He submits that it is one thing to say that the rider of the motorcycle did not have a valid driving license, but it would be another thing to say that the rider of the motorcycle was driving the motorcycle in a rash and negligent manner. He submits that the Apex Court in Sudhir Kumar Rana Vs. Surinder Singh & Ors., reported in (2008) 12 SCC 436 Page No.# 12/20 held that if a person drives a vehicle without a license, he commits an offense. The same, by itself, may not lead to a finding of negligence as regards the accident. Therefore, the Apex Court held that only because a person does not have a driving license, it cannot be held to be guilty of contributory negligence. 13. The learned senior counsel submits that the above decision was also relied upon by the same Court in a subsequent judgment rendered in Dinesh Kumar J. alias Dinesh Kumar J. Vs. National Insurance Company Limited & Ors., reported in (2018) 1 T.A.C. 337 (S.C.). The learned senior counsel submits that the Apex Court in Meera Devi & Anr. Vs. Himachal Pradesh Road Transport Corporation & Ors., reported in (2014) 4 SCC 511 in the given facts of that case held that in order to prove contributory negligence, there must be cogent evidence. In the instant case, the same is lacking and the Tribunal's finding of contributory negligence on account of the rider of the motorcycle not having a valid driving license is only erroneous and unsustainable in the light of the decision of the Apex Court. He thus submits that the finding of contributory negligence is thus unsustainable, and it would be the appellant solely responsible to pay the compensation awarded by the Tribunal. Mr. L.H. Lianhrima, learned senior counsel submits that the appellant in their written statement before the Tribunal did not take the plea of contributory negligence and therefore, they cannot take the said plea at this stage. Page No.# 13/20 14. Mr. L.H. Lianhrima, learned Senior counsel submits that after the case was remanded back for denovo trial, the parties amicably agreed to adopt the evidence led earlier and the same was recorded by the Tribunal in its order dated 20.07.2023 and therefore, this Court can very well consider and decide the appeal and cross-objection filed by the respondent Nos. 1 to 4. 15. I have heard the submissions made by the learned counsels for the rival parties, and have perused the materials available on record. 16. After the appeal was remanded for de novo trial, the Tribunal issued summons to the rider of the motorcycle and the owner of the motorcycle who were impleaded as OP Nos. 4 & 5 respectively. Since they failed to appear, summons was issued to them through newspaper publication made on 4 (four) consecutive dates. However, they failed to appear and the Tribunal proceeded to frame two additional issues in the following manner: “(1) Whether the bike rider Lalthianghlima, the OP No. 4 was guilty of rash and negligent by driving the bike without having the license for the same, and whether the same act endangered the life of others? (2) Whether the bike ride was guilty of contributing negligence?” 17. Apart from framing the above two issues, the learned Tribunal recorded that the counsels for both the parties have amicably agreed to adopt all the Page No.# 14/20 evidence already adduced by the witnesses and as such, the evidences already adduced was accordingly adopted. This apart, the Criminal Court Records were also perused in order to make a decision. The learned Tribunal was of the view that since the rider of the motorcycle did not have a driving license, the same amounted to contributory negligence and therefore, held him to be liable to pay 20% of the awarded amount. 18. The said findings in view of the decision of the Apex Court in And also in Sudhir Kumar Rana (supra) and also in Dinesh Kumar J. alias Dinesh Kumar J. (supra) would not be tenable in view of the fact that the Apex Court has held that the fact of the driver, not possessing any license would not automatically result to an inference or finding that the vehicle was driven in a rash and negligent manner and therefore, contributory negligence was established. 19. However, besides the above, what is apparent is that, in a claim made under Section 166 of the MV Act, the party concerned has to show that there was negligence on the part of the offending vehicle in driving the vehicle concerned, by way of cogent and reliable evidence. This Court, in the earlier round of appeal in MAC Appeal 28/2019 at paragraph Nos. 20 & 24 came to a finding that the documents on record before the learned Tribunal does not Page No.# 15/20 conclusively prove that there was any rash and negligent act on the part of the driver of the truck. Further, this Court held that there has been no evidence produced before the learned Tribunal, proving that the accident had occurred due to a rash and negligent act on the part of the truck driver. Paragraph Nos. 20 and 25 of the judgment (MAC Appeal No. 28/2019 dated 09.11.2020) is extracted below:- “20.On a bare perusal of the evidence of CW-2, it is clear that CW-2’s evidence is based on what he has heard from alleged witnesses to the accident. However, no eye witness to the accident or the witnesses with whom CW-2 has spoken to, have been specified or brought to the Court for giving evidence. No statement of alleged eye witnesses to the accident have been submitted before the learned Tribunal. The evidence of CW-2 that the driver of the truck could see the bike coming from the opposite direction and giving proper signal also gives rise to an inference that the converse would also be true, i.e. the bike rider would also have seen the on-coming truck. As stated earlier, the Police report dated 05.08.2017 does not specify as to how the accident occurred. Whether the accident was a head on collision or whether the bike hit the side of the truck. Whether the road was wide and narrow? Whether there was a curve in the road? Which part of the truck was hit by the bike and vise versa? In a claim under Section 166 of the MV Act, it is the duty of the claimants to prove that there was rash and negligent act on the part of the driver/owner of the offensive vehicle. This Court however finds that there has been no evidence produced Page No.# 16/20 before the learned Tribunal proving that the accident had occurred due to the rash and negligent act on the part of the truck driver. 25. In view of the reasons stated above, this Court finds that the evidence adduced and the documents on record before the learned Tribunal does not conclusively proved that there was any rash and negligent act on the part of the driver of the truck. Assuming that there was some rash and negligent act on the part of the driver of the truck, the further question that has to be decided is whether the onus of paying the entire compensation amount could have been fastened solely upon the appellant, inasmuch as, the learned Tribunal was not made aware of the fact that Criminal Trial No. 1352/2017, arising out of Vaivakawn P.S. Case No. 107/2017 had also been filed against the bike rider Sh. Lalthianghlima, who did not have a driving license. The question of whether the bike rider was guilty of contributory negligence would thus have to be also seen.” 20. With the above finding, the matter was remanded back to the Tribunal for a de novo trial to give the parties another opportunity to adduce evidence to establish the fact that there was rash and negligent act on the part of the driver of the truck in driving the vehicle or otherwise. However, despite the same, the parties have not led any further evidence and it appears that they have amicably agreed to adopt all the evidence already produced by the witnesses earlier. The Tribunal, in fact, also has recorded the same in its order dated Page No.# 17/20 20.07.2023. However, what is to be noticed that, on the same set of evidence, this Court has already come to a finding that the factum of a rash and negligent act on the part of the truck driver has not been established and it was for that reason that the matter was remanded back to the Tribunal. Therefore, in the absence of any development in the matter, or the parties having led additional evidence, if this court is to come to a separate finding on the same set of facts and evidence, it would mean that this Court is sitting in appeal against the finding made earlier by a Coordinate Bench, or reviewing the order passed earlier. The same, in the considered view of this Court, will not be permissible unless further evidence has been led after the matter was remanded back for de novo trial. 21. With regard to the "de novo trial", the Apex Court in Ajay Kumar Ghoshal & Ors. Vs. State of Bihar & Anr., reported in (2017) 12 SCC 699, in the given facts of that case held that "de novo trial” means a “new trial” ordered by an Appellate Court in exceptional cases when the original trial failed to make a determination in a manner dictated by law. The trial is conducted afresh by the Court as if there had not been a trial in the first instance. Reference to the case of Pandit Ukha Kolhe Vs. State of Maharashtra, reported in AIR 1963 SC 1531 was also made, wherein the Apex Court held that an order of re-trial wipes out from the record the earlier proceeding, and Page No.# 18/20 exposes the person accused to another trial, which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial. 22. Likewise, the Apex Court in Nasib Singh Vs. State of Punjab & Anr., reported in (2022) 2 SCC 89, in the given facts of that case, held that: if the matter is directed for re-trial, the evidence and record of the previous trial is completely wiped out. To come to such a conclusion, the decision rendered by the same Court earlier in Ajay Kumar Ghoshal & Ors. (supra) was also relied upon. 23. In the above two cited cases, the penal sections involved were Sections 302, 304-B, 201, 498-A, 120-B IPC read with sections 3 & 4 of the Dowry Prohibition Act, 1961 in respect of Ajay Kumar Ghoshal & Ors. (supra) and sections 306 read with section 34 IPC in Nasib Singh (supra). In the present case, we are concerned with a claim proceeding before the Tribunal under Section 166 of the MV Act. Although the penal sections are not to be found in the instant case, but nevertheless, the principles governing de novo trial would still apply. Moreover, as already observed in the preceding paragraphs that, there cannot be two distinct finding on the same set of evidences by the same Court. Therefore, upon due consideration, this Court is of the considered view that there is no better option than giving the parties concerned one more Page No.# 19/20 opportunity to establish their case by leading further evidence as was observed and directed by this Court in the Judgment dated 09.03.2020 in MAC Appeal No. 28/2019. If, for any reason whatsoever, the parties do not give further evidence, it would be incumbent upon the Tribunal to arrive at its finding independent of what has been held in its Judgment & Award dated 12.06.2019 and the Judgment & Award dated 02.09.2024 impugned in the instant appeal. 24. Therefore, upon due consideration and without expressing anything further, the Judgment & Award dated 02.09.2024 is hereby set aside and the matter is remanded back to the Tribunal for fresh consideration in terms of the observation made in the Judgment dated 09.11.2020 in MAC Appeal No. 28/2019. Since the claim was filed as far back as on 18.08.2017, the learned Tribunal shall make an endeavor to consider and dispose of the claim as expeditiously as possible and preferably within a period of 3 (three) months from the date of appearance of the parties. 25. The parties are directed to appear before the Tribunal on 16.06.2026. Thereafter, the Tribunal, upon their appearance, shall proceed with the matter and come to its logical conclusion in accordance with law. 26. The appeal accordingly stands disposed of and the cross objection of the respondent Nos. 1 to 4 also stands answered accordingly. Page No.# 20/20 JUDGE Comparing Assistant