JUDGMENT 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. 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 payable by whom. 6. The claimants examined three witnesses in support of their claim. The respondents examined five witnesses. 7. The learned Member, MACT, after hearing both the parties and considering the evidence, on-record, came to conclusion that the accident took place due to negligence on the part of the deceased and as such, the respondents were not liable to pay compensation. Accordingly, he dismissed the claim petition upholding the payment of Rs. 50,000/- as no fault liability. 8. 7. The learned Member, MACT, after hearing both the parties and considering the evidence, on-record, came to conclusion that the accident took place due to negligence on the part of the deceased and as such, the respondents were not liable to pay compensation. Accordingly, he dismissed the claim petition upholding the payment of Rs. 50,000/- as no fault liability. 8. Aggrieved by the said judgment and order of dismissal, the claimants, as appellants, have come up with this appeal on the following, amongst other, grounds: (i) That the learned Member, MACT, committed gross error and illegality by holding that the accident took place due to rash and negligent driving, on the part of the deceased, inasmuch as, the said findings was contrary to the evidence, on-record. According to the appellants, the deceased had taken care and caution, by measuring the width of the road, before making attempt to cross the road and as such, there was no negligence, on his part. (ii) It has also been contended, by the appellants, that the trial Court failed to appreciate that the deceased, being entrusted with the duty of collecting the pay and ration, was bound to reach the head-quarters and despite taking sufficient precaution and care, the vehicle met with the accident resulting his death. (iii) The appellants further contended that the appointment of the brother of the deceased, on compassionate ground, can not negate their claim for compensation, under the MV Act and as such, the learned trial Court committed gross illegality and error by refusing to grant compensation. 9. I have heard Mr. C.T. Zamir, learned Sr. Counsel, appearing for the appellants and Mr. B.N. Sarma, learned Counsel, appearing for the respondents and carefully perused the materials, on-record. 10. Mr. C.T. Zamir, learned Sr. Counsel, appearing for the appellants, supporting the grounds taken by the appellants, has submitted that the deceased, while performing official duty had driven the vehicle taking all necessary care and precaution, but the accident took place for no fault on his part. It is submitted that the deceased, before trying to cross the affected portion of the road had, himself, cleaned the mud, measured the road and took decision to cross the road, but due to ill luck the vehicle had fallen down a deep gorge resulting his death. The learned Sr. It is submitted that the deceased, before trying to cross the affected portion of the road had, himself, cleaned the mud, measured the road and took decision to cross the road, but due to ill luck the vehicle had fallen down a deep gorge resulting his death. The learned Sr. Counsel has strenuously argued that there was no rush and negligent driving by the deceased and as such, his legal representatives i.e. the appellants are entitled to get compensation for the death of the deceased, in connection with the said vehicular accident. In support of his contention, the learned Sr. Counsel has relied on the decisions, held in the following cases: (1) Kaushinuma Begum (Smt.) & Ors. vs. New India Assurance Co. Ltd. & Ors., reported in (2001) 2 SCC 9 . (2) National Insurance Co. Ltd. vs. Deepa Devi & Ors, reported in (2008) 1 SCC 414 . (3) Oriental Insurance Company Limited vs. Mohd. Nasir & Anr., reported in (2009) 6 SCC 280 (4) New India Insurance Company Limited vs. Gulab Chand Chorasya & Ors., reported in 2011 (1) TAC 577 (P & H) 11. Refuting the said argument, advanced by Mr. Jamir, learned Sr. Counsel, appearing for the appellants, Mr. B.N. Sarma, learned Counsel for the respondents, has submitted that the claim petition being filed under Sections 166 and 140 of the MV Act and in view of payment of Rupees fifty thousand as no fault liability, under Section 140 of the MV Act, the claimants, in order to get compensation, under Section 166 MV Act, are required to prove strict liability i.e. fault, lapse, negligence on the part of the owner of the vehicle. It is submitted that no default, lapse or negligence on the part of the owner of the vehicle, having been proved, the claim, made under Section 166 MV Act, is not maintainable. Mr. Sarma, referring to the evidence of the eye witnesses i.e. DW Nos. 4 and 5, who also travelled in the ill fated vehicle, on the said date, has submitted that the evidence, that, the deceased made attempt to cross the affected portion of the road alone, i.e. without allowing the other accompanying Police personnel, sufficiently established that the road was not safe and that there was very much risk in crossing the affected part of the road. Therefore, it is submitted that the decision of the deceased to cross the road under such condition and circumstances indicates that the act of the deceased was a negligent one, inasmuch as he had taken risk of crossing such an unsafe road, that too without being compelled to undertake such a dangerous step. Mr. Sarma, learned Counsel for the respondent, has submitted that there being no negligence or fault on the part of the State respondents, the State is not liable to pay compensation. In support of his argument, the learned Counsel for the respondents has relied on the following decisions: (1) Ravi Kapur vs. State of Rajasthan, reported in (2012) 9 SCC 284 ; (2) Appaji (since deceased) & Anr. vs. M. Krishna & Anr., reported in 2005 (1) TAC 994 (Kant.); (3) United India Insurance Co. Ltd. vs. H. Lalhmingliana & Anr., reported in 1 (2007) ACC 91; (4) New India Assurance Co. Ltd. vs. Murise Sangtem & Ors. reported in 2005 (Suppl.) GLT 302; (5) Tamilnadu State Transport Corporation, Tanjore Rep. By Md. vs. Natarajan & Ors., reported in (2003) 6 SCC 137 ; (6) State of Tamilnadu & Ors. vs. St. Josheph Teachers Training Institute & Anr., reported in (1991) 3 SCC 87 ; (7) Oriental Insurance Co. Ltd. vs. Vanlalhliri & Anr., reported in 2007 (4) GLT 575; (8) State of M.P. & Ors. vs. Sanjay Kumar Pathak & Ors., reported in (2008) 1 SCC 456 ; (9) Teri Oat Estate (P.) Ltd. vs. U.T. Chandigarh & Ors., reported in (2004) 2 SCC 130 ; (10) United India Insurance Co. Ltd. vs. Bhupender Singh & Ors, reported in 1996 (1) TAC 415 (Para. 5 & 6); (11) Sheblal Chandra & Anr. vs. Bhudayal Chandra & Anr. AIR 2007 Chhattisgarh 79 (Para-7); (12) Jayashri Vijayasinghrao Khalate & Ors. vs. Bhagivatlal Attarchand & Ors. 1996 (1) TAC 513 (Bom) (DB) Para-5; (13) New India Assurance Co. Ltd., vs. Phelishsa Bakai & Ors. 2006 (1) GLT 282 (DB) Para-78; (14) Oriental Insurance Co. Ltd. vs. Meena Variyal & Ors. AIR 2007 SC 1609 , Para-24 (15) Minu B. Metha & Anr. vs. Balkrishna Ramchandra Nayan &Anr., AIR 1977 SC 1246 , Para-29 & 31 (See on Supreme Court Jurisprudence on M.V. Act, Page -138); 12. Ltd., vs. Phelishsa Bakai & Ors. 2006 (1) GLT 282 (DB) Para-78; (14) Oriental Insurance Co. Ltd. vs. Meena Variyal & Ors. AIR 2007 SC 1609 , Para-24 (15) Minu B. Metha & Anr. vs. Balkrishna Ramchandra Nayan &Anr., AIR 1977 SC 1246 , Para-29 & 31 (See on Supreme Court Jurisprudence on M.V. Act, Page -138); 12. Having heard the learned Counsel for both the parties and perusing the materials, on-record, I propose to dispose of this appeal in the following way. 13. There is no dispute that the deceased, who was a Driver of the Police Department, Govt. of Nagaland, was entrusted with the duty to drive the ill fatal vehicle for fetching ration from Police Headquarters at Tuensang for the Police personnel, stationed at Pungro. It is also admitted fact that the vehicle, driven by the deceased, had fallen into a deep gorge as a result of which, the driver i.e. the deceased succumbed to the injuries, sustained by him. Now the question is, as to whether the appellants, being the legal representatives of the deceased (driver), are entitled to get compensation from the respondents i.e. owner of the vehicle i.e. employer of the deceased. 14. The present claim petition has been filed under Sections 166 and 140 of the MV Act. In order to correctly appreciate the maintainability of the claim, I feel it appropriate to discuss the relevant legal provisions, provided by the MV Act, 1988. Section 163A, which is a new provision of the Act, reads as follows: "[163 A. Special provisions as to payment of compensation on structured formula basis.-(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.-For the purpose of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923). Explanation.-For the purpose of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.] (2) Section 165(1) of the MV Act reads as follows: "165. Claims Tribunals.-(1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. Explanation: For the removal of doubts, it is hereby declared that the expression "claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles" includes claims for compensation under section 140 [and Section 163A]." Section 166 reads as follows: "166. Application for compensation.- (1) An application for compensation arising of an accident of the nature specified in subsection (1) of section 165 may be made- (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; of (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be." 15. From a close reading of the above provision of law, more particularly, Section 163A and 166, it appears that in a claim made under Section163A or Section 140, the claimant is not required to prove the fault of the owner of the vehicle or any person concerned. From a close reading of the above provision of law, more particularly, Section 163A and 166, it appears that in a claim made under Section163A or Section 140, the claimant is not required to prove the fault of the owner of the vehicle or any person concerned. But in respect of a claim, made under Section 166 MV Act, the fault or liability of the owner of the vehicle is required to be established. In the present case, the claim has been made under Sections 166 and 140 MV Act. 16. In view of the prescribed statutory provision of law, in order to determine the entitlement of the claimants of the present case, it is necessary to examine as to whether the accident took place due to any fault or negligence of the owner of the vehicle or whether the accident took place due to the own fault or negligence of the deceased (driver) himself 17. In the case of Kaushinuma Begum (supra), the offending vehicle (Jeep) capsized due to bursting of the front tyre in motion causing death of a pedestrian. His legal representatives filed claim case under Sections 165/140/163A MV Act. There was no negligence in driving the vehicle. The trial Court dismissed the claim for absence of negligence. On appeal, High Court dismissed the appeal. The claimants approached the Supreme Court. Supreme Court held that the claimants were entitled to get compensation under the structured formula, provided in the second schedule of the MV Act, despite absence of negligence of the driver and that the compensation paid under 'No Fault Liability' can be deducted from the final award. In this case, the application was filed under Sections 165/140/163A MV Act. The case in hand being filed under Sections 140 and 166 MV Act, the claimants, except getting the fixed amount under Section 140, are not entitled to relief under Section 166 MV Act, without establishing negligence or fault of the owner of the vehicle, because the claim has been made for the death of driver of the vehicle. Therefore, the decision held in the above referred case will not help the appellants. 18. Therefore, the decision held in the above referred case will not help the appellants. 18. In the case of Deepa Devi (supra), the application for claim was made under Section 165(1), 166 and 2(30) MV Act, while defining the term "Owner" appearing in the MV Act, in respect of a vehicle, requisitioned by Government, the Supreme Court held that the term "Owner" in case of requisitioned vehicle will mean the State Government and not actual owner. 19. In the case of Md. Nasir (supra), the Supreme Court, while holding that, it is the duty of the MACT to grant just compensation, even in absence of any claim amount, observed that the provision provided by Chapter-X of the MV Act, 1988 would be applicable to claims, made under the Workmen's Compensation Act, 1923 seeking compensation for death and permanent disability. 20. As discussed above, the present claim has been made under Sections 140 and 166 of the MV Act and neither under Section 163A of MV Act, nor the Act of 1923. Therefore, the law laid down in the above cited case will not be applicable to the present case. 21. In the case of Gulabchand Chorasya (supra), a learned Single Judge of the Punjab & Haryana High Court held that in an application, made under Section 166 MV Act, if the claimant is the representative of the driver, then the driver must not be a tort feasor. In such a case if the driver is not at fault then the claim under Section 166 MV Act will be maintainable. 22. A Division Bench of the High Court of Karnataka, in the case of Appaji (supra), relying on the decision of the Supreme Court, held in the case of Minu B. Mehta vs. Balkrishna Ramchandra Nayan & Anr., 1977 ACJ 118, observed that it was necessary to prove the fault of the owner or driver of the vehicle for getting compensation. 23. In the case of H. Lalhmingliana (supra), a Division Bench of this Court referred to the decision held by the Supreme Court in the case of Minu B Mehta vs. Balkrishna Ramchandra Nayan & anr. In the said case, the Supreme Court held that the concept of owners' liability without any fault or negligence was opposed to the basic principles of law. In the said case, the Supreme Court held that the concept of owners' liability without any fault or negligence was opposed to the basic principles of law. This was the law till the introduction of Section 92A of MV Act and the Section 92A MV Act stood replaced by Section 140 MV Act. As indicated by the Division Bench, Section 163A, which has been brought by the amendment Act No. 54 of 1994, w.e.f. 14.11.1994, as against the fixed minimum interim compensation awardable, on the principle of no fault, under Section 140 MV Act, which merges, in terms of Section 141 MV Act, in the final award to be made on the basis of fault liability under Section 166 MV Act. 24. The non-obstate clause in Section 163A indicates the intention of the law maker to provide compensation with the basis of predetermined formula without requiring proof of negligence. Section 163A is an exception to the provision of fault liability prescribed by Section 166 MV Act. Under Section 163A, a victim is entitled to get compensation even for his own liability, but not under Section 166 MV Act. 25. As held by the Division Bench, under S. 163A, a victim of a vehicular accident or his legal representative is entitled to get compensation without pleading or establishing wrongful act or negligence or default of the owner of the vehicle or of any concerned person. A victim or his legal representative, apart from claiming as no fault liability under Section 140 MV Act till final award is made under Section 166 MV Act, can make a claim under the Scheme of fault liability under Section 166 MV Act and the interim award will get merged with the final award. On the other hand, the claimant may opt for final award of compensation under Section 163A MV Act, on the basis of structured formula, as prescribed by the second schedule of the MV Act. 26. For seeking compensation under Section 163A, fault or negligence are not essential criteria to be proved. 27. This Section covers the accident, which takes place even due to the negligence of the victim. The law in this regard has been clearly laid down by the Apex Court in the case of Deepak Girishbhai Soni & Ors. vs. United India Insurance Co. 27. This Section covers the accident, which takes place even due to the negligence of the victim. The law in this regard has been clearly laid down by the Apex Court in the case of Deepak Girishbhai Soni & Ors. vs. United India Insurance Co. Ltd. The Supreme Court observed "In Section 163A, the expression "notwithstanding anything contained in this Act or in any other law for the time being in force" has been used, which goes to show that Parliament intended to insert a non obstante clause of wide nature which would mean that the provisions of Section 163A would apply despite the contrary provisions existing in the said Act or any other law for the time being in force. Section 163A of the Act covers cases where even negligence is on the part of the victim. It is by way of an exception to Section 166 and the concept of social justice has been duly taken care of." 28. In view of the above decision, a claimant, seeking compensation under Section 166 MV Act is duty bound to prove negligence, fault or lapse on the part of the owner. The claim in the present case being made under Section 140 and 166 MV Act and in view of receipt of Rs. 50,000/- under Section 140, the claimants were required to prove negligence or fault on the part of the owner. The Division Bench of our High Court, in the above cited case, observed "This is clear from the provisions of Section 163B, which lays down, in on uncertain words, that where a person is entitled to claim compensation under Section 140 and 163A, it shall file claim under either of the said two Sections and not under both." As the claimants have opted to seek compensation under Section 140 MV Act and already received rupees fifty thousand only as no fault liability, they are not entitled to get compensation u/s. 163A MV Act. Therefore, the claimants have to succeed in their application u/s. 166 MV Act i.e. the scheme of fault liability, in which negligence or fault of the owner of the vehicle (including vicarious liability) will have to be proved. 29. In the above cited case, the Division Bench examined the permissibility of awarding compensation converting the claim case, filed under Section 166 MV Act to one under section 163A of the MV Act. 29. In the above cited case, the Division Bench examined the permissibility of awarding compensation converting the claim case, filed under Section 166 MV Act to one under section 163A of the MV Act. While answering the said question in negative, the Court relied on the decision held by the Supreme Court in the case of Deepak Girishbhai Soni (supra). 30. In the case of Mursie Sangten and Ors. (supra), a learned single Judge of this Court, held that in a case filed under Section 166 and 140 MV Act, the claimant, who failed to prove the fault, would not be entitled to get any compensation under Section 166, except that has been given under Section 140 MV Act. 31. In the case of Tamilnadu State Transport Cooperation, Tanjore (supra), the corporation bus driven by the claimant (Respondent No. 1 before the Supreme Court in the appeal filed by Corporation) and a private bus collided against each other. Corporation's driver sustained injuries. So he made claim for compensation. The Tribunal held that there was contributing negligence and as such fixed 50% of the liability to be paid as compensation by the Corporation. A Division Bench of the Madras High Court upheld the award enhancing the same. On appeal by the Corporation, the Supreme Court held that, in view of contributing negligence of the driver (who was the claimant) of the Corporation's bus, the owner i.e. the Corporation could not be held vicariously liable for the negligence of the driver. Accordingly, while setting aside the impugned order, so far it related to payment of 50% liability towards compensation by the appellate Corporation, the Supreme Court held that the owner of the vehicle, driven by the claimant driver was not liable to pay compensation towards claim, made by the driver of the vehicle, for whose negligence the accident, resulting his injury, took place. 32. The case of St. Joseph Teachers Training Institute and Another (supra) related to right of students, admitted by an un-recognised institution, to write the public examinations. The Supreme Court has held that unrecognized institution has no right to insist upon the State to allow its students to appear at the public examinations. The ratio laid down by the Supreme Court, in the said case, is that in order to exercise a right one must follow the regulatory provisions prescribed by State. 33. The Supreme Court has held that unrecognized institution has no right to insist upon the State to allow its students to appear at the public examinations. The ratio laid down by the Supreme Court, in the said case, is that in order to exercise a right one must follow the regulatory provisions prescribed by State. 33. In the case of Vanlalhliri (supra) a learned Single Judge of this Court held that, in a claim case made under Section 166 of the MV Act, the claimant is required to prove the existence of negligence on the part of the driver of the offending vehicle. In the said case, the claimant was travelling as a passenger in a van, which met with an accident by colliding with a truck. Here, the claimant was a third party. But, in our case, the claim has been made due to death of the driver of the offending vehicle, which met with an accident by falling into a deep gorge. The facts of the above referred case being different from the present case, the decision rendered in the said case will not be applicable to the present case. 34. In the case of Sanjay Kumar Pathak (supra), the Supreme Court observed that, in the absence of legal right, sympathy cannot be basis for granting relief. In our present case also, though this Court has sympathy for the unfortunate legal representatives of the deceased, who died, while performing his official duty, without any personal cause, in absence of legal provision, no award can be granted ignoring the statutory provision. 35. In the case of Teri Oat Estate (P.) Ltd. (supra) also it has been observed that sympathy or sentiment by itself can not be ground for passing an order in relation whereto the claimant failed to establish a legal right. In the present claim case, filed under Sections 140 and 166 MV Act, the claimants, being paid Rupees fifty thousand as 'No fault liability' under Section 140 MV Act, their claim under Section 166 MV Act, can be allowed subject to existence of evidence regarding vicarious liability of the respondents. 36. In the case of United India Insurance Co. Ltd. vs. Bhupender Singh & Ors. (supra), the Court held that, a person can not initiate action for his own fault under Section 166(i) of the MV Act. 36. In the case of United India Insurance Co. Ltd. vs. Bhupender Singh & Ors. (supra), the Court held that, a person can not initiate action for his own fault under Section 166(i) of the MV Act. Such a person can approach a claims Tribunal under Section 166 MV Act if he accuses other person of doing civil wrong to him. 37. In the case of Sheblal Chandra & Anr. (supra), it has been held that in a claim case, filed under Section 166 MV Act, the death must be caused to a third person. 38. In the case of Jayashri Vijayasinghrao Khalate & Ors. (supra), it has been held that application under Section 166 MV Act is not maintainable at the instance of the person for whose fault the accident took place. 39. In the case of New India Assurance Co. Ltd., vs. Phelishsa Bakai & Ors. (supra), a learned Single Judge of this Court held that, in a case filed under Section 166 MV Act, it must be shown that there was fault or negligence or default of the offending vehicle. 40. In the case of Oriental Insurance Co. Ltd. vs. Meena Variyal & Ors. (supra), the Supreme Court held that in a case filed under Section 166 MV Act, the claimant must prove negligence of the driver or the owner of the vehicle. In a claim case, filed under Section 166 MV Act, to hold the owner liable to pay compensation, vicarious liability must be proved. 41. In the case of Minu B. Metha & anr. (supra), the Supreme Court held that in a claim case, the owner is liable for negligence on proof of vicarious liability for the act of his servant. 42. As provided in the Supreme Court on Words & Phrases [(1950 to 2004) Page 705] 'Negligence' is absence of reasonable or prudent care, which a reasonable person is expected to observe in a given set of circumstances. In K.J. Aiyar Judicial Dictionary 13 Edition page-818, the meaning of rash and negligent act has been discussed as follows: "Culpable rashness is acting with the consciousness that the mischievousness and illegal consequences may follow, but with the hope that they may not, and often with the belief that the actor has taken sufficient precaution to prevent their happening. The imputability arises from acting despite the consequences. The imputability arises from acting despite the consequences. The phrase Rashly means something more than inadvertence or intentiveness or want of ordinary care." 43. In the case of Ravi Kapur (supra), the Supreme Court held that the existence of negligence, in a vehicular accident can be gathered from the attendant circumstances. The Supreme Court observed- "13. "Negligence" means omission to do something which a reasonable and prudent guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduce amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the court. In a given case, even not doing one was ought to do can constitute negligence." 14. The court has to adopt another parameter i.e. "reasonable care" in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the rights users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others." 44. A close reading of Sections 165(i) and 166(i) of the MV Act and the principles laid down in the above cited cases indicates that a person, who suffers wrong or injury due to fault of any person in connection with use of a vehicle is entitled to claim compensation. In a case filed u/s. 166(i)MV Act, the claimant is required to prove rash and negligent driving of the offending vehicle or fault of the vehicle. In a case filed u/s. 166(i)MV Act, the claimant is required to prove rash and negligent driving of the offending vehicle or fault of the vehicle. On the other hand, Section 140of MV Act, provides the provision for payment of compensation of Rs. 50,000/- in case of death and Rs. 25,000/- in case of permanent disablement as no fault liability. There is no difficulty in understanding that a person claiming compensation under Section 166 MV Act is required to establish fault or negligence, or default of the driver of the concerned vehicle or the fault or negligence of the owner. Because, the scheme under Section 166 MV Act is based on fault liability. In the absence of evidence regarding fault or negligence, on the part of the owner or the driver, the claimant can't get compensation under Section 166 of the MV Act. 45. In the present case, the claimants have already been paid Rs. 50,000/-, as no fault liability under Section 140 MV Act. As provided by Section165 of the MV Act, claim for compensation in respect of accidents involving death or bodily injury out of use of a motor vehicles, can be made under Section 140 or Section 163(a) of the MV Act. The liability to pay compensation under Section 140 MV Act is directed in an accident arising out of motor vehicle leading to death or permanent disability of any person. Therefore, the facts that a person died or sustained permanent disability in connection with a vehicular accident are sufficient to get compensation under Section 140 of the MV Act. For such compensation, no negligence, wrongful act or default is required to be proved against the owner of the vehicle. But to get compensation under Section 166 MV Act, the accident must be of the nature satisfied under sub section (1) of Section 165 MV Act. As indicated above, existence of wrongful act including default on the part of the owner of the vehicle is necessary for succeeding in a claim petition filed under Section 166 MV Act. 46. In the case at hand, the claimants have made the application under Sections 166 and 140 of the MV Act. Their claim under Section 140 MV Act stood satisfied on payment of Rupees fifty thousand as no fault liability. 46. In the case at hand, the claimants have made the application under Sections 166 and 140 of the MV Act. Their claim under Section 140 MV Act stood satisfied on payment of Rupees fifty thousand as no fault liability. Now in order to determine their entitlement for compensation under Section 166 MV Act, it is required to examine as to whether there was any negligence, fault or lapse on the part of the respondents in connection with death of the driver. Existence of vicarious liability of owner is an essential ingredient of Section 166 MV Act. 47. The claimant No. 1, who deposed as PW-1, was not present at the time of the accident, in the place of occurrence. She came to know about the occurrence, on being reported by others. She stated that, after reaching the landslide area of the road, the deceased had stopped the vehicle and cleared the road himself. She further stated that, her husband measured the width of the affect part of the road and thereafter droved the vehicle alone, without taking other occupants. She has exhibited the relevant documents i.e. ration card, birth certificate, medical report, death certificate, copy of the FIR etc. In her cross-examination, she admitted that poor maintenance of the road was the cause of the accident and that Police Department was not responsible for the accident. Her said statement indicates that the owners of the vehicle were not liable for the death of her husband. In her cross-examination, she stated that her husband had taken decision to cross the mudslide portion of the road being satisfied after measuring road and that he was not advised by others to do so. Her said evidence indicates that she had also the information that her husband had taken the risk of crossing the road. A close reading of her evidence leads to find that the deceased had taken risk by attempting to cross the road. The fact that he did not allow other accompanying Police personnel to board the vehicle, at the time of crossing the affected area, sufficiently indicates that there was risk in crossing the road and he despite having knowledge about the danger had made the attempts with his free will and without any compelling circumstances. 48. PW-2, was a Medical Officer, who performed autopsy of the dead body of the deceased. 48. PW-2, was a Medical Officer, who performed autopsy of the dead body of the deceased. He had no personal knowledge about the manner of driving. 49. PW-3, who was the Investigating Officer of the case, in his in-chief examination, stated that he came to the conclusion that the driver was not negligent and that the road was wide enough to cross the same and that the front wheels had crossed the affected portion, but the accident took place due to skidding of the rare wheel. But, in his cross-examination, the I.O. contradicted his said statement by saying that the deceased driver was responsible due to his own negligence, for which he added the offences under Sections 304(A)/337/448 IPC. This witness also arrived in the place of occurrence, after the incident. Therefore, this evidence is no better than opinion. However, from his evidence, it is found that the driver had taken risk and he himself was responsible for his death. The I.O.'s evidence does not suggest any fault on the part of the owner of the vehicle. 50. Mr. A. Akum Ao., Dy. Commandant, NAP, deposing as DW-1, stated that the deceased died due to his own fault, i.e. taking risk of crossing the muddy portion of the road. In his cross-examination, this witness stated that deceased being an expert driver knew the condition of the road. 51. Mr. L. Lengkhothang L. Doungel, IGP, PHQ, Kohima, deposing as DW-2, stated that the driver himself measured the width of affected portion of the road and being satisfied, without taking any occupants in the vehicle, had made attempt to cross the affected part of the road. According to this witness, the driver, knowing the consequence of the danger, tried to cross the road and while doing so, he met with the accident. This witness further stated that the accident took place due to negligence, on the part of the driver. He was not present at the time of the occurrence and he came to know about the incident on being informed by others. He deposed on the basis of the investigation report. He also stated that the brother of the deceased was appointed under the Scheme, namely, "Die-in-harness". 52. Mr. I. Tokiumong, Commandant, 3rd NAP, Tuensang, gave evidence on the basis of the investigation report. He was not present at the time of the occurrence. He deposed on the basis of the investigation report. He also stated that the brother of the deceased was appointed under the Scheme, namely, "Die-in-harness". 52. Mr. I. Tokiumong, Commandant, 3rd NAP, Tuensang, gave evidence on the basis of the investigation report. He was not present at the time of the occurrence. According to this witnesses, the accident took place due to negligence, on the part of the driver. 53. Mr. Yutsumong Sigmal Hav., deposing as PW No. - 4, stated that he also accompanied the deceased on the fateful day. He stated that the mudslide portion of the road was cleaned by them and thereafter, the deceased personally measured the road and decided to cross the affected portion asking the other occupants to wait till he could cross that part of the road. This witness further stated that, while trying to cross the road, the rear wheel of the vehicle skidded upon stepping over a stone and the vehicle fell into a gorge. It his cross-examination, this witnesses stated that the driver drove the vehicle with due care. 54. Mr. Mar Ao, another eye witnesses, deposing as DW-5, stated that he was also travelling in the ill fatal vehicle and that the driver, while attempting to cross the mudslide portion of the road, ask them to wait till he could cross the affected portion of the road. He stated that there was no order to reach the destination under any circumstances. This evidence indicates that there was no compulsion. According to this witness, the accident took place due to the risk taken by the deceased, in crossing the mudslide area, despite knowing the consequence and the danger. In his cross-examination, this witness stated that, though he was the Commanding Officer of the vehicle, he did not ask the deceased to cross the mudslide area. He further stated that the driver had taken the responsibility knowing the risk of endangering his life. From the evidence of this witness, it appears that the accident took place due to the risk taken by the deceased himself. The fact that the deceased did not allow other accompanying Police personnel to board the vehicle at the time of crossing the affected areas, clearly indicates that there was sufficient risk in crossing the road. From the evidence of this witness, it appears that the accident took place due to the risk taken by the deceased himself. The fact that the deceased did not allow other accompanying Police personnel to board the vehicle at the time of crossing the affected areas, clearly indicates that there was sufficient risk in crossing the road. The fact that he decided to cross that part of the road alone i.e. without taking the other accompanying persons, including the DW No. 4 and 5, lead to understand that the road was not safe to drive the vehicle. Hence despite having knowledge about such unsafe condition of a road, his attempt to cross the road indicates his negligence and carelessness in driving the vehicle. The said circumstances lead to the conclusion that the deceased had taken risk of crossing the road, ignoring the consequence and as such, the accident took place due to his own fault and negligence. 55. Applying the principles held in the above cited cases and considering the evidence, on-record, I have no hesitation in holding that the learned trial Judge, while deciding the issue No. 2, correctly appreciated the evidence, on-record and rightly came to the conclusion that the deceased was responsible for his own willful negligence as well as rash and negligent driving. Hence, I find no sufficient reason for taking a different view. 56. As discussed above, from the materials on-record, there is nothing to find that the employer or the owner of the vehicle i.e. respondents were responsible for the accident. No negligence, lapse or default, of any manner, has been established against the respondents. Hence, they can't be held vicariously liable for the accidental death of the deceased. 57. In view of the ratio laid down in the above cited decisions and the principles held therein, there is no difficulty in understanding that in a claim case brought under Section 166 MV Act, the owner of an offending vehicle is liable to pay compensation to the claimant or his legal representatives for his negligence or vicarious liability. Under the provision of Section 140 MV Act, the claimant can get the fixed amount of compensation as prescribed by the said provision. But to be entitled to get compensation under Section 166 MV Act, from the owner of the vehicle, his negligence or vicarious liability must be proved. Under the provision of Section 140 MV Act, the claimant can get the fixed amount of compensation as prescribed by the said provision. But to be entitled to get compensation under Section 166 MV Act, from the owner of the vehicle, his negligence or vicarious liability must be proved. The driver, who sustained injury or his legal representative, for the death of the driver in connection with a vehicular accident, which took place due to the fault or negligence of the driver are not entitled for compensation in an application, filed under Section 166 of the MV Act. In such a case, the claimant must prove fault of the owner of the vehicle. The principle of volenti non fit injuria i.e. harm suffered voluntarily does not constitute legal injury and not actionable. No person can complain of the injury or loss to which he exposed himself having knowledge about risk or danger and for undertaking such act with free will. 58. As found from the above discussed evidence, on-record, the accident took place due to the fault or negligence of the driver himself and there was no fault or negligence on the part of the owner (respondents). Hence, the claimants, who are the legal representative of the deceased are not entitled to get compensation under Section 166 of the MV Act for the death of the deceased, inasmuch as they have failed to establish any fault or negligence of the owner i.e. the respondents. Hence, the claim under Section 166 MV Act is not maintainable. I am, therefore, of the considered opinion that the learned trial Court committed no error by passing the impugned judgment and order. In the result, I find no merit in this appeal. Accordingly, the appeal is dismissed. There shall be no order as to cost. Return the LCR. Appeal dismissed