1. Heard Mr. S. Pradhan, learned counsel appearing for the appellant. Also heard Mr. Zochhuana, learned counsel appearing for the respondent No. 1, i.e., United India Insurance Co. Ltd. 2. None appears for the respondent No. 2 despite service of notice. 3. The appellant filed a claim petition under section 166 read with section 140 of the Motor Vehicles Act, 1988, for short, the Act, in respect of death of his father Sh. Rozika in a motor vehicle accident on 21.7.2012 at around 2.30 p.m. involving a Bolero Pick-Up vehicle of the respondent No. 2 herein bearing registration No. MZ01/G-2295. 4. The vehicle was driven by the owner himself and the said vehicle was insured by the respondent No. 1. Both the opposite parties to the claim petition filed their respective written statements. The owner-cum-driver of the vehicle had taken the plea that despite being careful, the accident had taken place as the road was slippery on account of rain. The Insurance Company, apart from the stand that the claim was exaggerated, also asserted that from the police report, it appears that there was no rash and negligence on the part of the driver. 5. On the basis of the pleadings, three issues were formulated by the learned Tribunal. These are as follows : (1) Whether the claim application is maintainable in the present form and style? (2) Whether there is fault on the part of the driver or the owner of the vehicle involved in the accident? (3) Whether the claimant is entitled to get compensation, and if so, who is liable to pay it and to what extent? 6. During the course of hearing, the claimant examined two witnesses whereas the Insurance Company examined one witness. After filing written statement, the owner-cum-driver did not take any further part in the proceeding. 7. By the impugned judgment in MACT Case No. 18/2013 dated 25.6.2014, the learned Member-cum-Presiding Officer, Motor Accident Claims Tribunal, Aizawl, decided Issue No. 1 in favour of the claimant. Issue No. 2 was decided against the claimant holding that the claimant had failed to prove rash and negligent driving on the part of the driver. With such determination of Issue No. 2, the claim petition was dismissed without discussing Issue No. 3. 8. Mr. Issue No. 2 was decided against the claimant holding that the claimant had failed to prove rash and negligent driving on the part of the driver. With such determination of Issue No. 2, the claim petition was dismissed without discussing Issue No. 3. 8. Mr. S. Pradhan, learned counsel for the appellant submits that the finding of the learned Tribunal that the claimant failed to establish rash and negligent driving on the part of the driver is a perverse finding and the learned Tribunal solely relied on Ext-C6, Police Report, without considering the material evidence of CW2, who was also an occupant of the ilMated insured vehicle. It is submitted by him that if the evidence of CW2 had been taken into consideration along with Ext-C6, then there would have been no escape from the conclusion that there was rash and negligent on the part of the driver of the vehicle in question. He has argued that failure to take due and reasonable care in a given circumstance amounts to negligence and the evidence of CW2 would demonstrate that the driver-cum-owner had not taken due and reasonable care in driving the vehicle in a steep road in rainy condition by not putting the four-wheel drive in place. That amounts to negligence and nothing more is required to prove on that count, the learned counsel for the appellant submits. 9. Mr. Zochhuana, learned counsel appearing for the respondent No. 1 submits that Ext-6 was tendered into evidence by the claimant himself. Ext-C6 in unambiguous term, demonstrates that no rash and negligence driving was found on the part of the driver. It is also submitted by him that not putting the vehicle in four-wheel drive will not enable the court to draw an inference that there was rash and negligence on the part of the driver. 10.1 have considered the submissions of learned counsel for the parties arid have perused the material on record. 11. While deciding Issue No. 2, the learned Tribunal recorded as follows : "13. CW No. 2 H. Lalhmingliana was present at the time of the accident and from his statement and the W.S. filed by the OP No. 1, it appears that at the time of the accident it was raining and the road was slippery. 11. While deciding Issue No. 2, the learned Tribunal recorded as follows : "13. CW No. 2 H. Lalhmingliana was present at the time of the accident and from his statement and the W.S. filed by the OP No. 1, it appears that at the time of the accident it was raining and the road was slippery. OP No. 1 the vehicle owner drove the vehicle and from his W/S, it appears that he was very careful but unfortunately, the accident had taken place. From the statement of CW No. 2, it appears that without putting the vehicle in the four wheel drive the driver OP No.l attempted to climb up the market area and the vehicle slipped backward and run off the road and turned turtle. The OP No. 1 is the owner of the vehicle who had driven the vehicle and he has to be careful while driving his vehicle. 14. The claimant himself submitted the police report which is exhibited as Ext. C-6. From ext. C-6, it appears that the accident happened due to slippery and muddy of road surface because of heavy rain and as a result the tyre lost its traction on the road surface and ultimately turned turtle below the road and no rash and negligence driving was found on the part of the driver and that was why criminal case was not registered but Bawngkawn PS GDE No. 498 dated 21.7.2012 was registered. In view of the above facts and circumstances, I hold that the fault, rash and negligent driving on the part of the driver is not proved by the claimant and the issue is decided in favour of the opposite parties." 12. From the evidence of CW1, it appears that the deceased was employed in the defence force, namely, the Assam Regiment and was drawing pension of Rs. 10,840. He had hired the vehicle to carry some farm produce to Tlungvel Market. It was raining a bit and the road was slippery. While going uphill to the market area, the vehicle could not climb up and slipped backward, ran off the road and turned turtle. The deceased was sitting in between the claimant witness No. 2 and the driver. The deceased succumbed to his injury two days later after he had been taken to Hospital. 13. While going uphill to the market area, the vehicle could not climb up and slipped backward, ran off the road and turned turtle. The deceased was sitting in between the claimant witness No. 2 and the driver. The deceased succumbed to his injury two days later after he had been taken to Hospital. 13. In the Police Report, Ext-C6, it is stated as follows : "Further it substantiated that the accident happened due to slippery and muddy of road surface because of heavy rain, as a result the tyres lost its traction on the road surface and ultimately turned turtle below the road. No rash and negligence driving was found on the part of the driver." 14. The said Police Report was made by the Officer-in-charge of Bawngkawn Police Station. It is noticeable that the learned Tribunal had merely mentioned the evidence of CW2 who was also in the vehicle at the time of accident without considering the import of such evidence. He had categorically stated that the driver, who is his friend, drove the vehicle without putting the vehicle in the four-wheel drive and that the accident had occurred because the driver was not careful. In cross-examination, he had denied a suggestion of the Insurance Company that the driver was not negligent. What is apparent from the evidence of CW2 is that the vehicle in question was a four-wheel drive vehicle and the driver-cum-owner of the vehicle had not engaged the four-wheel drive while climbing up the road, that too, when it was raining and the road was slippery. It was not suggested to CW2 that in these circumstances, there was no necessity of putting the vehicle in four-wheel drive though a categorical statement was made by him that he firmly believed that if the vehicle was engaged in four-wheel drive, the accident would not have occurred. 15. Negligence is absence of reasonable or prudent care, which a reasonable person is expected to observe in a given set of circumstances. It means omission to do something which a reasonable and prudent person would do or doing something which a prudent and reasonable person would not do. Negligence is not an absolute term but is a relative term. It is difficult to enunciate an exact formula by which negligence or lack of it can be infallibly measured in a given case. It means omission to do something which a reasonable and prudent person would do or doing something which a prudent and reasonable person would not do. Negligence is not an absolute term but is a relative term. It is difficult to enunciate an exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence on the face of it or the course of conduct 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 what one ought to have done can constitute negligence. 16. In the facts of the case, the driver-cum-owner of the vehicle was remiss and negligent inasmuch as he had not taken due care and caution and had omitted to engage four-wheel drive which a reasonable and prudent man would have done in those circumstances. 17. In Ext-C6, the Officer-in-charge had expressed his opinion that there was no rash and negligence driving. It was an opinion from his perspective and the same is not conclusive. As indicated hereinabove, whether or not there is rash and negligent driving, has to be gathered >from the attending facts and circumstances. 18. Considering the matter in its entirety and having regard to the materials on record, I am of the considered opinion that the claimant had proved that there was rash and negligent driving on the part of the driver-cum-owner of the vehicle for the purpose of grant of compensation. 19. Accordingly, this appeal is allowed. The impugned order so far as it relates to Issue No. 2 is set aside and quashed. The learned Tribunal will now hear the parties and dispose of the claim petition in accordance with law. 20. Registry will send down the records.