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2017 DIGILAW 742 (GAU)

State of Nagaland v. Nokosangla

2017-06-06

SONGKHUPCHUNG SERTO

body2017
JUDGMENT AND ORDER : S. Serto, J. 1. This is an appeal under Section 173 of Motor Vehicles Act, 1988 directed against the judgment and award dated 25.10.2012, passed by the MACT, Mokokchung in MAC Case No. 25/2008. 2. The facts and circumstances of the case briefly stated are that on 09.11.2007, the husband of the respondent No. 1, and father of the respondent No. 2,3 & 4, namely, Lt. Mr. R. Panger Longkumer, Deputy Director under the department of Agriculture, Government of Nagaland then, was travelling on the Maruti Van bearing Registration No. NL-10/5445, allotted to him for official duty, driven by the driver of the same from Changki to Dimapur. And while travelling thus, the vehicle met an accident at about 5:00 p.m. of the same day at a place located at about 1 Km from Changki Village junction. Due to the injuries suffered in the accident late R. Panger Longkumer died at the spot while the driver and two other passengers suffered serious injuries. Soon after the accident he was taken to Community Health Centre. Mokonglemba. The Traffic Control, Mokokchung made a GD. entry being No. 79/2007, dated 10.11.2007 and also prepared a report in which all the details of the vehicle and brief facts about the accident was recorded. For the lost of their love one in the accident, the respondents filed a claim case under Section 166 of the Motor Vehicles Act, 1988 before the MACT, Mokokchung. The same was registered as MAC Case No. 25/ 2015. The appellants who were arrayed as the respondents in the MAC Case filed a written statement contesting the claims of the respondents/claimants. The Tribunal, after hearing the parties, framed the following issues;- 1. Whether the vehicle bearing R/No. NL-10/5445 M/V was involved in the accident that occurred on 09.11.07 due to rash and negligent driving, and whether from the said accident the named deceased in MAC 25/08 case died or not, and the injured claimants in MAC 23 & 24/08 sustained grievous injuries and become permanently disable or not? 2. Whether the vehicle No. NL-10/ 5445 was used on 09.11.07 with proper authority of the respondents while the alleged accident took place? 3. Whether the deceased late Panger was using the vehicle No. NL-10/5445 on bona fide official duty when the alleged accident took place on 09.11.07 which was a general holiday (Diwali)? 4. 2. Whether the vehicle No. NL-10/ 5445 was used on 09.11.07 with proper authority of the respondents while the alleged accident took place? 3. Whether the deceased late Panger was using the vehicle No. NL-10/5445 on bona fide official duty when the alleged accident took place on 09.11.07 which was a general holiday (Diwali)? 4. Whether the violation of order, notification and guidelines issued by the Govt, for use of Govt, vehicles by claimants/respondents shall escape liability ? 5. Whether the respondents are liable for any act committed by its servant when the servant was out of the course of its employment? 6. What was the cause of the alleged accident of vehicle No. NL-10/5445 on 09.11.07? 7. Whether the claimants are entitled to any compensation? If so, what amount and payable by whom? 3. Both the respondents/claimants and the appellants/respondents produced and examined only 1 (one) witness each in support of their respective case. The Tribunal, after hearing the parties and considering the evidence given by them and the law applicable, passed the impugned judgment and award. The operative portion of the judgment and award are as follows;- Issue No. 7 :- Whether the claimants are entitled to any compensation? If so, what amount and payable by whom? All the issues are settled affirmative in favour of the claimants and I held the claimants are entitled to the following compensation. The deceased died at the age of 56 years and used to draw monthly salary of Rs. 23,348/-. The relevant multiplier is 8. Hence, the following award. 1 Rs. 23,348/-x 12x8 Less % as there are 4 dependence Rs. 22,41,408/- = Rs. 5.60.352/-Rs. 16,81,056/- 2 For loss of estate Rs. 20,000/- 3 For loss of Consortium Rs. 20,000/- 4 For funeral and others Rs. 10,000/- 5 For future prospect Less No. Fault Total Rs. 2.00.000/-Rs. 19,31,056/-Rs. 50.000/-Rs. 18,81,056/- (Rupees eighteen lacs eighty one thousand fifty six) only. The claimants are also entitled to 9% interest per annum from the date of filing of the claim i.e from 17.12.2008 over the awarded amount until payment. Order I direct the Director, the Department of Agriculture, Nagaland, Kohima to deposit the awarded amount of Rs. 2.00.000/-Rs. 19,31,056/-Rs. 50.000/-Rs. 18,81,056/- (Rupees eighteen lacs eighty one thousand fifty six) only. The claimants are also entitled to 9% interest per annum from the date of filing of the claim i.e from 17.12.2008 over the awarded amount until payment. Order I direct the Director, the Department of Agriculture, Nagaland, Kohima to deposit the awarded amount of Rs. 18,81,056/- (Rupees eighteen lacs eight one thousand fifty six) only along with interest @ 9% per annum from the date of filing of the claim i.e from 17.12.08 within a period of 30 days from the date of this order. The amount awarded to be deposited into my tribunal in the form of bank draft for proper verification and disbursement to the claimant. And I signed and sealed of this order on this the 25th day of October, 2012." 4. Heard Mr. Tali Ao, learned counsel for the appellant. Also heard Mr. B.N. Sarmah, learned counsel who appeared on behalf of the respondents. 5. The main grounds of appeal as submitted by the learned counsel Mr. Tali Ao are as follows;- (i) That the vehicle on which late R. Panger Longkumer met the accident was not allotted to him personally but was allotted only for official duty, and on that day when the accident took place he was not on official duty, therefore, the appellants cannot be held liable under the principle of vicarious liability. In support of his submission the learned counsel cited the following judgments;- (1). Sitaram Motilal Kalal v. Santa-nuprasa Jaishankar Bhatt & Ors. reported in 1966 ACJ 89 (SC), paragraph-6, 10 & 11. "6. The law is settled that a master is vicariously liable for the acts of his servants acting in the course of his employment. Unless the act is done in the course of employment, the servant's act does not make the employer liable. In other words, for the master's liability to arise, the act must be a wrongful act authorised by the master or a wrongful and unauthorised mode of doing some act authorised by the master. The driver of a car taking the car on the master's business makes him vicariously liable if he commits an accident. But it is equally well-settled that if the servant, at the time of the accident, is not acting within the course of his employment but is doing something for himself the master is not liable. The driver of a car taking the car on the master's business makes him vicariously liable if he commits an accident. But it is equally well-settled that if the servant, at the time of the accident, is not acting within the course of his employment but is doing something for himself the master is not liable. There is a presumption that a vehicle is driven on the master's business and by his authorised agent or servant but the presumption can be met. It was negatived in this case, because the vehicle was proved to be driven by an unauthorised person and on his own business. The de facto driver was not the driver or the agent of the owner but one who had obtained the car for his own business not even from the master but from a servant of the master. Prima facie the owner would not be liable in such circumstances. 10. The scope of employment of a servant need not of course be viewed narrowly, but the essential element that the wrong must be committed by the servant during the course of the employment, i.e. in doing the master's business ought always to be present. In Century Insurance Co. v. Northern Ireland Road Transport Board the driver of a petrol lorry while transferring petrol from the lorry to an underground tank, struck a match to light a cigarette and threw it on the floor, and thereby caused a fire and explosion which did great damage. The masters were held liable because the negligence was in the discharge of the duty by the servant. Although the act of lighting the 'cigarette was something the driver did for himself and was by itself quite harmless, it could not be regarded in the abstract and was a negligent method of conducting the master's work. Similarly, in. Smith v. Martin a school authority was held liable when a 'teacher, during school hours sent a girl aged 14 wearing a print pinafore to poke the fire and to draw out the damper in a grate in the teacher's common room and the child was burnt. It was held that the teacher's duty was to provide education in the widest sense and included expecting obedience from the pupils and this was an act of negligence in the discharge of such duty. 11. It was held that the teacher's duty was to provide education in the widest sense and included expecting obedience from the pupils and this was an act of negligence in the discharge of such duty. 11. We know of no further extension of the doctrine of a master's liability for the act of his servants during the course of his employment which would cover this case. It cannot possibly be stated today that the master is responsible for the acts of his servant done, not in the course of employment, but outside it. In the present case, the third defendant was not doing the master's work nor was the second defendant acting within the scope of his employment when he lent the taxi. The third defendant had borrowed the taxi for a work of his own and the second defendant in lending it was not acting in the master's business. The second defendant was not present in the taxi so that he could be said to be in control on behalf of his employer when the taxi was driven". (2). Harris & Ors. v. Toronto Transit Commission & Ors. reported in 1968 ACJ 264 (SC Canada), paragraph-14. I do not find this case applicable in the facts and circumstances of the case, therefore, the contents of the judgment cited is reproduce here as to do so would only occupy space. (3). State of Maharashtra & Ors. v. Kanchanmala Vuijaysing Shirke & Ors. reported in 1995 ACJ 1021, particularly paragraph-9. "9. The question of payment of compensation for motor accidents has assumed great importance during the last few decades. The road accidents have touched a new height in India as well as in other parts of the world. Traditionally, before court directed payment of tort compensation, the claimant had to establish the fault of the person causing injury or damage. But of late, it shall appear from different judicial pronouncements that the fault is being read as because of someone's negligence or carelessness. Same is the approach and altitude of the courts while judging the vicarious liability of the employer for negligence of the employee. Negligence is the omission to do something which a reasonable man is expected to do or a prudent man is expected not to do. Same is the approach and altitude of the courts while judging the vicarious liability of the employer for negligence of the employee. Negligence is the omission to do something which a reasonable man is expected to do or a prudent man is expected not to do. Whether in the facts and circumstances of a particular case, the person causing injury to the other was negligent or not has to be examined on the materials produced before the Court. It is the rule that an employer, though guilty of on fault himself, is liable for the damage done by the fault or negligence of his servant acting in the course of his employment. In some case, it can be found that an employee was doing an unauthorised act in an unauthorised but not a prohibited way. The employer shall be liable for such act, because such employee was acting within the scope of his employment and in so acting done something negligent or wrongful. A muster is liable even for acts which he has not authorised provided they are so connected with acts which he has been so authorised. On the other hand, if the act of the servant is not even remotely connected within the scope of employment and is an independent act, the master shall not be responsible because the servant is not acting in the course of his employment but has gone outside. In Saimond's Law of Torts (Twentieth Edition) at page 458 it has been said: "On the other hand, it has been held that a servant who is authorised to drive a motor vehicle, and who permits an unauthorised person to drive it in his place, may yet be acting within the scope of his employment. The act of permitting another to drive may be a mode, albeit an improper one, of doing the authorised work. The act of permitting another to drive may be a mode, albeit an improper one, of doing the authorised work. The master may even be responsible if the servant impliedly, and not expressly, permits an unauthorised person to drive the vehicle, as where he leaves it unattended in such a manner that it is reasonably foreseeable that the third party will attempt to drive it, at least if the driver retains notional control of the vehicle." (ii) The next ground of appeal submitted by the Id counsel is that the respondents/claimants did not even whisper in their application that late R. Panger Longkumer was on official duty, therefore, any amount of evidence given to prove that late R. Panger Longkumer was on official duty would not help their case. The learned counsel in support of his submission cited the following judgment;- (1). Jhulan Rani Saha v. National Insurance Co. Ltd. & Ors. reported in 1994 ACJ 1117, paragraph-16. "16. ...It is true that in many respects the Tribunal is free from technicalities of the Civil Procedure Code and Evidence Act; but this does not mean that pleading need not be specific, clear and need not contain requisite pleas or data...." (2). Raba Laxmi Debbarma & Ors v. Nupur Deb & Anr. reported in 2011 ACJ 2421 , paragraph-9 & 10. "9. Learned Tribunal had completely lost sight of the importance of the pleadings, the settled law that the party cannot adduce evidence in absence of the pleadings in the suit of civil nature and also the related provision of the Code of Civil Procedure. The Apex Court in Bangalore Metropolitan Trans. Corpn. v. Padma, 2009 ACJ 1336 (SC), held that in the absence of any pleading and evidence to substantiate the stand there was no scope for accepting the plea that the negligent act of the deceased himself had resulted in the accident and there was no negligent act on the part of the driver of the bus. In that case, the plea of the appellant before the High Court as well as the Supreme Court was that there was negligence on the part of the deceased himself as he was in an intoxicated state by consumption of alcohol, as a consequence of which he imbalanced himself and fell without involvement of the bus. By such a fall, he suffered injuries and succumbed to the same. By such a fall, he suffered injuries and succumbed to the same. But, these facts were not pleaded by the appellants in the pleadings. As such, the Apex Court as well as the High Court, in absence of the pleading and the evidence to substantiate these pleading, did not accept the plea of the appellant that the negligent act of the deceased himself resulted in the accident. Paras 3,4, 5 and 6 of Bangalore Metropolitan Trans. Corpn’s case (supra) read as follows: "(3) The claim was resisted by the BMTC contending that the vehicle in question was not involved in the accident and also contending that the deceased was in an intoxicated state by consumption of alcohol as a consequence of which he imbalanced himself and fell without involvement of the bus. By such a fall, he suffered injuries and succumbed to the same. In short, the BMTC disputed involvement of the bus as a primary cause for the accident in question and, thus, sought to absolve itself of the noxious liability to pay compensation. Considering the evidence adduced, the MACT fixed the loss of dependency of Rs. 10,77,032/- to which certain amounts were added towards conventional heads to arrive at the amount of Rs. 11,04,032/-. The stand of the appellant was that the negligent act of the deceased himself had resulted in the accident and there was no negligence on the part of the driver of the bus. Before the High Court it was submitted that the deceased was in an intoxicated state and, therefore, because of his negligence the accident occurred. High Court noticed that there was no averment in the written statement and no evidence was led in that regard. The High Court also did not find any substance in the plea that the multiplier of 12 as adopted was in the higher side. Accordingly, the appeal was dismissed. (4). In support of the appeal the stands taken before the High Court were reiterated. (5). No one appeared on behalf of respondent in spite of service of respondent. (6). So far as the stand that the accident occurred because the deceased was in an intoxicated state is concerned, the High Court has rightly noted that in the absence of any pleading and evidence to substantiate the stand there was no scope for accepting the plea. 10. (6). So far as the stand that the accident occurred because the deceased was in an intoxicated state is concerned, the High Court has rightly noted that in the absence of any pleading and evidence to substantiate the stand there was no scope for accepting the plea. 10. The Apex court in Bondar Singh Nihal Singh, (2003) 4 SCC 161 , held that in the absence of plea, no amount of evidence led in relation thereto can be looked into. Para 7 in Bondar Singh's case (supra) reads as follows; "(7) As regards the plea of sub tenancy (shikmi) argued on behalf of the defendants by their learned counsel, first we may note that this plea was never taken in the written statement the way it has been put forth now. The written statement is totally vague and lacking in material particulars on this aspect. There is nothing to support this plea except some alleged revenue entries. It is settled law that in the absence of a plea no amount of evidence led in relation thereto can be looked into. Therefore, in the absence of a clear plea regarding sub tenancy (shikmi), the defendants cannot be allowed to build up a case of sub tenancy (shikmi). Had the defendants taken such a plea it would have found place as an issue in the suit. We have perused the issues framed in the suit. There is no issue on the point" The Supreme Court in Rajgopal (dead by LRs. v. Kishan Gopal, (2003) 10 SCC 653 , held that in the absence of specific pleading in the plaint, the courts are precluded from taking cognizance on mere evidence. Para 9 in Rajgopal's case reads as follows:- '(9). Thus, we proceed to consider the question whether the finding recorded by the first appellate court that Goverdhan Das was given in adoption by his natural father Moti Lal suffered from any legal infirmity. At this stage, it may be relevant to state that as Goverdhan Das was given in adoption much before the coming into force of Hindu Adoptions and Maintenance Act, 1956, the parties will be governed by the law which was in force at the time of adoption. According to para 474 of Mulla's Hindu Law, 18th Edition, "the only person who can law-fully give a boy in adoption are his father and his mother. According to para 474 of Mulla's Hindu Law, 18th Edition, "the only person who can law-fully give a boy in adoption are his father and his mother. " This shows that Goverdhan Das could have been given in adoption by his father Moti Lal and not brother Kishan Lal. From the pleadings, it becomes clear that the plaintiffs had nowhere averred in the plaint that Goverdhan Das was not given in adoption by his father Moti Lal but brother Kishan Lal. It was simply pleaded that the adoption was in 'Dwyamushyayana' form. As such a case never was pleaded in the plaint, there was no occasion for the defendants to plead in the written statement as to who gave Goverdhan Das in adoption and accordingly, the defendants in the written statement, only denied that adoption was in 'Dwyamushyayana' form and according to them, the same was in ordinary form. In the abence of any pleading whatsoever on the question as to whether Goverdhan Das was given in adoption by his father Moti Lal or brother Kishan Lal, there was no lis between the parties on this question, as such courts could not have gone into the same even if some evidence was adduced and the lower appellate court rightly decided this question against the plaintiffs. Reference in this connection may be made to a decision of the Privy Council in the case of Siddik Mohomed Shah v. Mt. Saran, AIR (1930) PC 57 (1), in which it was held that 'whether a claim has been never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward. The said case has been referred to by this Court with approval in the case of Bhagat Singh v. Jaswant Singh, AIR (1966) SC 1861. In that case, some evidence was led but the High Court refused to go into the question observing that where no plea was taken, it cannot be said that there was any lies between the parties thereon. This Court upheld the decision of the High Court observing that the same was supported by decision of the Judicial Committee in the case of Siddik Mohomed Shah (supra). Thus we do not find any error in finding recorded by the first appellate court on this point". The Apex Court in para 5 of Mohammad Mustafa v. Sri. This Court upheld the decision of the High Court observing that the same was supported by decision of the Judicial Committee in the case of Siddik Mohomed Shah (supra). Thus we do not find any error in finding recorded by the first appellate court on this point". The Apex Court in para 5 of Mohammad Mustafa v. Sri. Abu Bakar, AIR 1971 SC 361 , held that - "Thus finding having been reached without proper pleadings and necessary issues the same cannot bind any of the parties to the suit though it does indicate the serious injustice that is likely to happen to the appellant because of his defective pleadings." (iii) The third ground of appeal submitted by the Id counsel is that for a successful claim under Section 166 of Motor Vehicles Act, 1988 the claimant has to prove that there was rash and negligent driving on the part of the driver when the accident took place, but in this case, no eye witness and not even the co-passengers who were injured in the accident were examined, and no Police investigation report which would show that there was rash and negligent driving of the vehicle by the driver was produce, therefore, the Tribunal erred in concluding that the accident took place due to the rash and negligent driving of the vehicle. As such, the impugned order and award deserves to be quashed and set aside. The learned counsel cited the following cases in support of his submission. (1). Oriental Insurance Co. Ltd. v. Meena Variyal & Ors. reported 2007 ACJ 1284 , para-24. "24.............Therefore, the victim of an accident or his dependants have an option either to proceed under Section 166 of the Act or under Section 163 A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned " (2). Reshma Kumari & Ors. v. Madan Mohan & Anr. reported in 2013 ACJ 1253, para-11. "11. On the other hand, by making an application for compensation arising out of an accident under section 166 it is necessary for a claimant to prove negligence on the part of the driver or owner of the vehicle. Reshma Kumari & Ors. v. Madan Mohan & Anr. reported in 2013 ACJ 1253, para-11. "11. On the other hand, by making an application for compensation arising out of an accident under section 166 it is necessary for a claimant to prove negligence on the part of the driver or owner of the vehicle. The burden is on the claimant to establish the negligence on the part of the driver or owner of the vehicle and on proof thereof, the claimant is entitled to compensation. We are confronted with the question, whether while considering an application for compensation made under section 166, the multiplier specified in the Second Schedule can be taken to be guide for determination of amount of the compensation." (iv) The fourth ground of appeal submitted by the Id counsel is that the Secretary of the Agriculture department is a necessary party, as he represents the government, his non impleadment is fatal for the claimants, because, the Director of the department has no authority to pay compensation as directed by the Tribunal. (v) The fifth ground of appeal submitted by the Id counsel is that as per the Nagaland Retirement from Public Employment (Second Amendment) Act, 2009 any employee under the Government of Nagaland has to retire either at the age of 60 years or on completion of 35 years length of service. According to this rule, the deceased late R. Panger Longkumer would have retired after 1 year and 8 months from the day he died had he continued to live, therefore, his income should have been calculated by splitting it before and after retirement, and if this was done the multiplier would be much less than 8 as adopted by the Tribunal and that would have resulted in a much lesser compensation then it is awarded. The learned counsel also submitted that the learned Tribunal awarded compensation for future prospect, loss of estate, consortium and for funeral expenses but which are outside the M.V. Act, therefore, they ought to be deducted from the compensation amount. (vi) Lastly, the learned counsel submitted that the respondent No. 2, 3 & 4 are married daughters, therefore, in the absence of specific plea that they are dependants they cannot be entitled to compensation for the death of their father. 6. Mr. (vi) Lastly, the learned counsel submitted that the respondent No. 2, 3 & 4 are married daughters, therefore, in the absence of specific plea that they are dependants they cannot be entitled to compensation for the death of their father. 6. Mr. B.N. Sarmah, learned counsel for the respondents defending the judgment and award of the Tribunal submitted as follows;- That though no specific mention was made in their application filed before the Tribunal that late R. Panger Longkumer was on official duty when the accident took place it was easily impliable from the application of the respondents, therefore, the Tribunal framed an issue on it and evidence was also led by the respondents/claimants proving the same. As such, the appellants cannot now raise the issue at this stage. The learned counsel further submitted that while the appellants did not mention either in their written statement nor in their evidence that the deceased used the vehicle on a holiday and for private business the respondent No. 1 in her deposition had clearly stated that her husband was on official duty when the accident occurred, therefore, the submission of the learned counsel for the appellants on this point has no basis at all. The learned counsel cited the following judgment of the Hon'ble Supreme Court in the case of;- Ram Sarup Gupta (Dead) By Lrs v. Bishun Narain Inter College & Ors reported in AIR 1987 SC 1242 , paragraph- 6. "6. ... The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead; the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead; the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. In Bhagwati Prasad v. Shri Chandramaul, (1956) 1 SCR 286 a Constitution Bench of this Court considering this question observed: "If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to reply upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another." 7. To allow one party to reply upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another." 7. The learned counsel also submitted that the fact that the accident occurred and late R. Panger Longkumer died at the sport shows that the accident could not have happened for any other reason than rash and negligent driving of the driver, therefore, there was no need of eye witness to prove the same. The Id counsel further submitted that the fact that the Police had made a GD. entry is sufficient even without an FIR being registered. Such lacunae on the part of the Police cannot be a reason for denying benefit or compensation to the claimants. Besides, Evidence Act should not be strictly applied in Motor accident claim cases. In support of his submissions, the learned counsel cited the judgments in the following cases but for the sake of brevity only the gist or ratio are given; "(1). In "Ram Sarup Gupta v. Bishnu Narain inter College AIR 1987 SC 1242 " (Para-6) Pleading should not be literally construed. If parties are aware of the plea involved and proceeded in the trial on that basis question of absence of that plea cannot be raised by any of the parties. (2). In" Thakur Bhim Singh : Thakur Kan Singh v. Thakur Kan Singh: Thakur Bhim Singh AIR 1980 SC 727 " (Par-10) evidence beyond pleadings its permissibility -a plea not specifically raised by parties leading evidence thereon cannot be ignored on purely formal and technical view. If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial then the mere fact that the plea was not expressly taken in the proceedings would not necessary disentitle party from relying upon it if it is satisfactorily proved by evidence. (3). In "Union of India v. United India Assurance Co. Ltd., & Anr.( 1997) 8 SCC 683" (Para-11) ( same is also reported in supreme court accidents insurance claim cases 1950 to 2010 page 1555). (3). In "Union of India v. United India Assurance Co. Ltd., & Anr.( 1997) 8 SCC 683" (Para-11) ( same is also reported in supreme court accidents insurance claim cases 1950 to 2010 page 1555). A contention was raised for the union of India that there was no pleading in regards to the negligence of the railway the said contention was rejected by the Hon'ble Supreme Court held that it is well settled that when the issue framed by the trial court is wide and parties understood the scope thereof and adduced such evidence as they wanted to, then there can be no prejudice and a contention regarding absence of a detail pleading cannot be countenanced. (4). In "Parmeshawari v. Amir Chand & Ors. AIR 2011 SC 1504 " Para-10.(AIR May 2011 issue) No. I.O. examined is not fatal when other evidence proof the fact. (5) In" Zakir Hussain v. Keshab Borah & Ors". 2004 (Supplementary) GL.T. 177 (relevant para 7 & 8) Held, claim petition cannot be turned down on the count that police have not made any investigation as required under law when the other documentary and oral evidence medical evidence prove the factum there is no reason to disbelieve it. (6) In "Harbans Lai v. Nazar Singh,2002 (1) TAC 707 (D.B) (Para No.-4) Court held that it cannot be expected that the injured or the survivors of the deceased would immediately rush to the police station for lodging the complaint. (7) In "Md. Abdul Mazid & Anr. v. Md. Farique Seikh & Anr. 2006 (suppl)(GLT) 674 : 2006 (3) TAC 676, (Para 8 & 9) Tribunal rejecting appellants claims for compensation on the ground of doubt as to occurrence of the accident for no action taken by the police and the competent authority and also in view of n o action taken by the owner/driver of the offending vehicle. Court held for default of the Police or the authority in taking action or for the failure of the owner in discharging his duties the claim for compensation cannot be defeated. Appeal allowed and the case remanded for trial. (8). In "N.K.V Bros (P) Ltd. v. M. Karumai Ammal & Ors." Supreme Court Jurisprudence on Motor Accident Claims (page no. 161 the relevant para No. 3) AIR 1980 SC 1354 . Appeal allowed and the case remanded for trial. (8). In "N.K.V Bros (P) Ltd. v. M. Karumai Ammal & Ors." Supreme Court Jurisprudence on Motor Accident Claims (page no. 161 the relevant para No. 3) AIR 1980 SC 1354 . Wherein Hon'ble supreme court held that accident claims tribunal must take a special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubts here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. (9) In "Union of India & Ors. v. Mrs. Sarawati Dabnath & Ors." 1995 (II) GLT 117 (Relevant Par-6) the Hon'ble court held - the law is settled that in a claim under MV Act, the evidence should not be scrutinized in a manner as is done in a civil suit or a criminal case. In a civil case the rule is preponderance of probability and in a criminal case the rule is proof beyond reasonable doubt. It is not necessary to consider these niceties in a matter of accident claim case in as much as it is summary enquiry. If there some evidence to arrive at a finding that itself is sufficient. No nicety, doubt or suspicion should weigh with the tribunal in deciding a Motor accident claim case." 8. Regarding the claim of the other legal heirs other than the respondent No. 1. The learned counsel by citing the provisions of section 165 of MV Act submitted that where death has resulted from an accident, claim for compensation can be made by all or any of the legal representatives of the deceased, therefore, there is no bar under the law for the daughters of the deceased to apply for compensation. In support of his submission, the learned counsel cited the case of Chandan Singh & Ors. v. S.E. W. Construction Co. Ltd. & Ors. 2004 (1) TAC 765 (DB), para-11. "11. The question arise before the court that father is not dependent on the deceased since he was employed and receiving handsome salary, however compensation may be awarded to the mother. The Hon'ble court held we do not appreciate this contention to the extent it is advanced. Ltd. & Ors. 2004 (1) TAC 765 (DB), para-11. "11. The question arise before the court that father is not dependent on the deceased since he was employed and receiving handsome salary, however compensation may be awarded to the mother. The Hon'ble court held we do not appreciate this contention to the extent it is advanced. Simply because legal representatives of the deceased are earning members and do not depend upon the deceased for survival, claim for compensation cannot be denied. Assuming all the legal heirs of the deceased are in service and receiving salary or their own income, does it mean that the claim petition is to be dismissed as not maintainable? We are satisfied that this is not purpose of the legislation and in case it is held as contended by the respondents, the tortfeasors are the beneficiaries which is not the purpose of the legislation. Compensation is assessed and awarded for the death of a person to his legal heirs who sustain loss on account of his death by the tortfeasors or wrongdoers. therefore, compensation is awardable and distributed amongst legal representatives depending on the fact of the case". 9. On the impleadment of the Secretary of the Agriculture department, Government of Nagaland. The learned counsel submitted that when the Chief Secretary of the State is impleaded, non impleadment of the Secretary of the department cannot be ground for dismissing an application for compensation under Motor Vehicle Act. The learned counsel in support of his submission cited the following case;- "In the State of Tripura & Ors. v. Manabendra Das Choudhury 2001 (2) GLT 380 (DB)" (Para-8) court held-Article 300 of constitution or Section 79 or other provisions of C.P.C, do not required that specific department would be impleaded as necessary party in a suit filed against the state. Under the principle of respondent superior, union Govt, or the respective state Govt, are liable to the extent as prescribed for under article 300 and this regard no law has been made in the parliament or in the state legislature as yet. Thus state or union Govt, is liable for the act committed by any officer or official of any department, if it comes within the fold of liabilities to be shouldered by the union of India or respective state under the law. Thus state or union Govt, is liable for the act committed by any officer or official of any department, if it comes within the fold of liabilities to be shouldered by the union of India or respective state under the law. For that matter, it is not necessary that the forest department should be impleaded as party though it may be proper to implead the respective officer/official connected with cause of action to be impleaded in the suit as proper party only." 10. After having considered the submission of both the learned counsels, the facts and circumstances of the case, the evidence and the finding of the Tribunal and the law applicable, this Court has arrived at the following conclusions;- It is admitted fact that the deceased was Deputy Director in-charge of Census in Agriculture department of the State. The nature of his job clearly suggests that he has to go to villages to collect data or to supervise collection of data. For doing so, one does not need working days. He can even go on non-working days. Therefore, when he had gone to villages with his driver on the vehicle allotted for official duty, unless there is specific proving otherwise, against it presumption has to be that he was on official duty. In this case, credence is added to such presumption by the evidence given by the respondents/claimant No. 1 as the only PW. The plea that no permission was obtained from higher authority for going on tour or no information was given to them regarding his journey is immaterial, because, he a was high ranking officer in-charge of a specific responsibility which requires him to tour extensively. At the most it would be a formality to obtain such permission or to give information. Further, from the application of the claimants, it is impliable or inferable that claim was made based on the plea that the deceased was on official duty. Moreover, as rightly pointed out by the learned counsel of the respondents specific issue was framed on the same and the appellants were aware of it and, they had the chance to prove their case, therefore, their plea that no specific plea was made on that as such, the case of the respondents/claimants is not maintainable cannot be accepted. Moreover, as rightly pointed out by the learned counsel of the respondents specific issue was framed on the same and the appellants were aware of it and, they had the chance to prove their case, therefore, their plea that no specific plea was made on that as such, the case of the respondents/claimants is not maintainable cannot be accepted. What has been stated by the Hon'ble Supreme Court in the two cases; (I) Ram Sarup Gupta (Dead) By Lrs v. Bishun Narain Inter College & Ors reported in AIR 1987 SC 1242 , paragraph-6, and (II) in the case of Bhagwati Prasad v. Shri Chandramaul, (1956) 1 SCR 286 cited by the Id counsel of the respondents/claimants (supra) are relevant and squarely applicable in the facts and circumstances of this case. Therefore, without going any further it is concluded that the judgment and award of the MACT, Mokokchung cannot be faulted on such grounds raised by the appellants 11. Coming to next the ground, it is admitted fact that while the vehicle was driven by the driver it met the accident and late R. Panger Longkumer died at the spot while the driver and the other occupant suffered serious injuries. There is no evidence to show that the accident happened due to any other cause than rash and negligent driving of the driver. In such circumstances what can only be inferred or presumed is that the accident happened due to rash and negligent driving of the driver. Strict rules of evidence as in criminal trial cannot be applied in cases of motor accident claims. It is sufficient if preponderance of probability is shown. MV Act being beneficial legislation cases under it has to be tried a little more liberally when it comes to procedural laws and law of evidence so that the intent and purpose of the same are fulfilled. The fact that the Police did not register FIR case and conducted a full investigation cannot be a ground for denying compensation to the respondents/claimants because it is none of their fault that such things as required by law were not done by the people responsible of the same. Sufficient number of decisions have been cited by the Id counsel of the respondents on these points and I do not find it necessary to go back on those. Suffice to say that the respondents/claimants have sufficiently proved their case. 12. Sufficient number of decisions have been cited by the Id counsel of the respondents on these points and I do not find it necessary to go back on those. Suffice to say that the respondents/claimants have sufficiently proved their case. 12. Now coming to the question of non impleadment of the Secretary of Agriculture department, I agree with the learned counsel of the appellant that it would have been more proper had it been done so, however, since the Chief Secretary who is head of all the Secretaries and the Director of the department are impleaded both the government and the departments are represented. Therefore, though the concern of the learned counsel is appreciated the case of the respondents/claimants cannot be set aside or discarded on that ground. 13. Regarding the multiplier to be adopted for computing the compensation payable to the respondents/claimants, the learned Tribunal has rightly adopted the number 8 because the deceased was between 55 years and 60 years and the same is as provided in the 2nd Schedule of Motor Vehicle Act. The multiplier in the 2nd Schedule of Motor Vehicle Act had been prepared taking into consideration the age and future income of the victim/deceased. Choice of multiplier cannot be based on the present and future income of the victim alone. In fact the schedule has been prepared taking into all the relevant factors, therefore, there is no reason to deviate from it. As such, this Court is not inclined to accept the submission of the learned counsel. 14. It is not only in practice of Courts' to grant compensation for funeral expense, for loss of consortium and loss of estate but it has been provided in the 2nd Schedule of Motor Vehicle Act, 1988 to grant compensation under such heads. Therefore, the submission of the learned counsel of the appellants that the learned Tribunal erred in granting such compensation is not accepted. 15. As regards to inclusion of the daughters of the deceased as claimants it has been aptly submitted by the learned counsel of the respondents by referring to the provision of section 165 of M.V. Act. There is no reason to differ as the section itself makes is very clear and the judgment cited by the learned counsel supports the same. In view of the above discussions and conclusions drawn, the appeal is rejected and accordingly dismissed.