JUDGMENT Michael Zothankhuma, J. - Heard Mr. Johny L. Tochhawng, learned counsel for the appellant Insurance Company and Mr. L.H. Lianhrima, learned senior counsel appearing for the respondent Nos. 1 to 4. 2. This appeal has been filed by the appellant Insurance Company, which insured the LPK Tipper bearing registration No. AS-11 BC-6999 owned by the respondent No. 5. The respondent Nos. 1 to 4 are the father, mother and two sisters of the deceased respectively. The respondent No. 6 is the driver of the LPK Tipper. The appeal has been filed against the Judgment & Award dated 12.06.2019 passed by the MACT, Aizawl in MACT Case No. 53/2017, by which compensation amount of Rs. 39,55,000/- has been awarded to the claimants, alongwith interest @ 7% per annum from the date of filing of the claim petition till final payment. 3. The brief facts of the case is that the respondent Nos. 1 to 4, who are the claimants filed MACT Case No. 53/2017 due to the death of K. Lalruatpuia, 29 years, who died in a vehicular accident on 10.07.2017, involving a Truck (LPK Tipper) bearing registration No. AS 11 BC 6999 and bike No. MZ 04 6332, in which the deceased was the pillion rider. While the bike driver sustained injury on his hand due to the accident, the pillion rider (deceased) succumbed to his injury after arriving in the Civil Hospital, Aizawl. 4. The respondents/claimants Nos. 1 to 4 filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, hereinafter referred to as the MV Act, 1988 stating that the deceased was doing the business of distributing betel leaves in Aizawl South area and was earning not less than Rs. 25,000/- per month. 5. The appellant filed their written statement stating that the claim petition was not maintainable and that no liability could be a fixed upon the appellant. 6. The learned Tribunal framed three issues which are as follows:- "i) Whether the present claim application is maintainable in its present form and style? ii) Whether there was fault on the part of the driver or owner of the accident vehicle? iii) Whether the Claimants are entitled to compensation, and if so, to what extend and who is liable to pay? 7. Thereafter, the respondent No. 1, who was the father of the deceased, gave his evidence as CW-1. Sh. ii) Whether there was fault on the part of the driver or owner of the accident vehicle? iii) Whether the Claimants are entitled to compensation, and if so, to what extend and who is liable to pay? 7. Thereafter, the respondent No. 1, who was the father of the deceased, gave his evidence as CW-1. Sh. Lalmuansanga, ASI of Police, who had made enquiries with regard to the accident adduced his evidence as CW-2. The two other witnesses were CW 3 & 4, who were persons who knew the deceased and had given their evidence to prove that the deceased earned between Rs. 20,000/- to 30,000/- per month. 8. The learned Tribunal thereafter passed the impugned Judgment & Award and awarded compensation as follows:- As such the compensation is as follows:- (1) Annual income = 25000x12 = 300000 (2) Addition of 50% of future prospect = 300000x50 = 150000 100 (3) Loss of income = 300000+150000x17 = 7650000 (4) 50% is hereby deducted as personal expenses as the deceased being a bachelor = 7650000x50 = 3825000 100 (5) Funeral Expenses = 15,000 (6) Loss of Estate = 15,000 (7) Loss of expectation of life = 1,00,000 Total Compensation Awarded = Rs. 39,55,000/ (Rupees thirty nine lakhs fifty five thousand) only. 9. Mr. Johny L. Tochhawng, the learned counsel for the appellant submits that the impugned Judgment & Award has to be set aside, as the respondent Nos. 1 to 4 were not able to prove that there was any rash and negligent act on the part of the driver of the LPK Tipper. As the claim petition was filed under Section 166 of the MV Act, 1988, the award of compensation in the absence of any finding that the driver of the Truck was rash and negligent was illegal. 10. The learned counsel for the appellant submits that no eye witness was examined by the learned Tribunal and neither was any statement of any eye witness exhibited before the learned Tribunal. He accordingly submits that rash and negligent act on the part of the driver of the Truck was not proved. The learned counsel for the appellant submits that the income of the deceased was not proved, as no documentary evidence had been submitted by the respondent Nos. 1 to 4. He accordingly submits that rash and negligent act on the part of the driver of the Truck was not proved. The learned counsel for the appellant submits that the income of the deceased was not proved, as no documentary evidence had been submitted by the respondent Nos. 1 to 4. Accordingly, the finding of the learned Tribunal that the income of the deceased was 25,000/- per month was not justified. 11. The learned counsel for the appellant also submits that the learned Tribunal erred in calculating the future prospects of the deceased @ 50% of his income and not 40%, as held by the Judgment of the Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi & Ors., (2017) 16 SCC 680 . He also submits that the learned Tribunal erred in awarding Rs. 1 Lakh for loss of expectation of life, though the same has not been provided for in the case of Pranay Sethi & Ors. (Supra). 12. Mr. L.H. Lianhrima, learned senior counsel appearing for the respondents/claimants Nos. 1 to 4, on the other hand submits that the production of the Police Officer as witness before the learned Tribunal was sufficient to prove that the accident had occurred due to the rash and negligent act of the driver of the Truck (LPK Tipper). He submits that the Police report dated 05.08.2017 issued by the O.C, Vaivakawn Police Station states that the enquiry revealed that the accident happened due to the rash and negligent driving on the part of the truck driver and that Vaivakawn Police Station Case No. 102/2017 dated 11.07.2017 under Section 279/304-A IPC had been registered against the truck driver. Also the evidence of the Police (CW-2) had clearly stated that the accident could have been averted, as the truck could see the bike coming from the opposite direction. 13. He submits that this Court should not adopt a hyper-technical approach, but should discharge its role of parens patriae. In support of his submission, the learned counsel for the respondent Nos. 1 to 4 has relied upon the judgment of the Apex Court in the case of Mohar Sai & Anr. Vs. Gayatri Devi & Ors., 2018 3 TAC 18 (S.C.). 14. The counsel for the respondent Nos. In support of his submission, the learned counsel for the respondent Nos. 1 to 4 has relied upon the judgment of the Apex Court in the case of Mohar Sai & Anr. Vs. Gayatri Devi & Ors., 2018 3 TAC 18 (S.C.). 14. The counsel for the respondent Nos. 1 to 4 admits that the learned Tribunal should have calculated the future prospects of the deceased by adding 40% of his income and not @ 50%, as the deceased was self employed, which would be in consonance with the judgment of the Apex Court in Pranay Sethi & Ors. (Supra). The learned counsel for the respondent Nos. 1 to 4 also submits that in the case of Magma General Insurance Co. Ltd. (Supra), the Apex Court has awarded compensation not only for spousal consortium, but also parental consortium and filial consortium. 15. The counsel for the respondent Nos. 1 to 4 also submits that in the case of Ramachandrappa Vs. Manager, Royal Sundaram Alliance Insurance Co. Ltd., (2011) 13 SCC 236 , the Apex Court has held that though the Tribunal need not accept the claim of the claimant in the absence of supporting materials, it can in a given case, if the claim made is exorbitant or contrary to ground realities, proceed to determine the possible income by resorting to some guesswork, which may include the ground realities prevailing at the relevant point of time. He submits that the Apex Court in the above case had accepted the statement that the person was working as a Coolie earning Rs. 4500/- per month. The learned counsel submits that this Court can also make some guesswork with regard to the income of the deceased in this case, keeping in mind the ground realities and the evidence adduced by CW-3 and CW-4, who are also betel leaf sellers. 16. The learned counsel for the respondent No. 4 submits that as there was no rebuttal evidence adduced by the appellant with regard to the income of the deceased, the income of the deceased has to be accepted, as the same has been stated by the claimants' witnesses. In this regard, he has relied upon the Judgment of the Apex Court in the case of Kishan Gopal & Anr. Vs. Lala & Ors., (2014) 1 SCC 244 . In this regard, he has relied upon the Judgment of the Apex Court in the case of Kishan Gopal & Anr. Vs. Lala & Ors., (2014) 1 SCC 244 . The learned counsel thus submits that there being no infirmity with the impugned Judgment & Award, the same should be upheld by this Court. 17. I have heard the learned counsels for the parties. 18. In the case of Reshma Kumari & Ors. Vs. Madan Mohan & Anr., (2013) 9 SCC 65 , the Apex Court has held that rash and negligent act on the part of the driver/owner of the vehicle has to be proved before compensation can be awarded. In the present case, no eye witness to the accident has been examined. Neither has any statement of any eye witness to the accident been submitted before the learned Tribunal. The Police report dated 05.08.2017 issued by the Officer-in-charge, Vaivakawn Police Station does not give a description as to how the accident occurred. The report only states that the accident happened due to the rash and negligent driving on the part of the truck driver and that Vaivakawn P.S. Case No. 102/2017 dated 11.07.2017 under Section 279/304-A IPC had been registered. 19. The evidence of ASI Sh. Lalmuansanga (CW-2) is that the bike ridden by Sh. Lalthianghlima, with pillion rider Sh. K. Lalruatpuia (deceased), coming from Rangvamual was dashed by a truck coming at high speed from Bawngkawn. Though bystanders tried to stop the truck, the truck fled from the scene. However, the truck driver surrendered with the vehicle at about 10:00 PM at Vaivakawn Police Station. CW-2 further states that from the statement of witnesses and from the circumstances of the accident, it is evident that had the truck driver been careful, the accident could have been averted, as the truck driver could see the bike coming from the opposite direction and giving proper signal. CW-2 thereafter stated that the accident was purely due to the rash and negligent driving of the truck driver. CW-2 also states that he did not know the outcome of the Vaivakawn P.S. Case No. 102/2017 dated 11.07.2017 under Section 279/304-A IPC, which was registered against the driver of the truck. 20. On a bare perusal of the evidence of CW-2, it is clear that CW-2's evidence is based on what he has heard from alleged witnesses to the accident. 20. On a bare perusal of the evidence of CW-2, it is clear that CW-2's evidence is based on what he has heard from alleged witnesses to the accident. However, no eye witness to the accident or the witnesses with whom CW-2 had spoken to, have been specified or brought to the Court for giving evidence. No statement of alleged eye witnesses to the accident have been submitted before the learned Tribunal. The evidence of CW-2 that the driver of the truck could see the bike coming from the opposite direction and giving proper signal also gives rise to an inference that the converse would also be true, i.e. the bike rider would also have seen the oncoming truck. As stated earlier, the Police report dated 05.08.2017 does not specify as to how the accident occurred. Whether the accident was a head on collision or whether the bike hit the side of the truck. Whether the road was wide and narrow? Whether there was a curve in the road? Which part of the truck was hit by the bike and vise versa? In a claim under Section 166 of the MV Act, it is the duty of the claimants to prove that there was rash and negligent act on the part of the driver/owner of the offensive vehicle. This Court however finds that there has been no evidence produced before the learned Tribunal proving that the accident had occurred due to the rash and negligent act on the part of the truck driver. 21. The above being said, as the counsels for the parties were not able to inform this Court as to the status of Vaivakawn P.S. Case No. 102/2017 dated 11.07.2017 under Section 279/304-A IPC, allegedly registered against the respondent No. 6, who is the driver of the truck, this Court made enquiries with regard to the same and it was found that the Police had submitted a charge sheet against the respondent No. 6 and Sh. Lalthianghlima, who was the driver of the bike. The case is pending adjudication before the Court of the Judicial Magistrate 1st Class, Aizawl, wherein it has been registered as Criminal Trial No. 1352/2017. The stage of Criminal Trial No. 1352/2017, arising out of Vaivakawn P.S. Case No. 102/2017, is "Consideration of charge". However, as the accused Sh. Lalthianghlima, who was the driver of the bike. The case is pending adjudication before the Court of the Judicial Magistrate 1st Class, Aizawl, wherein it has been registered as Criminal Trial No. 1352/2017. The stage of Criminal Trial No. 1352/2017, arising out of Vaivakawn P.S. Case No. 102/2017, is "Consideration of charge". However, as the accused Sh. Lalthianghlima (driver of the bike) has absconded, the Trial Court has issued a Proclamation on 22.03.2019 and subsequently, a warrant of arrest was issued on 04.11.2019. The Court records of Criminal Trial No. 1352/2017 also states that the respondent No. 6 has not attended Court regularly because of the pandemic. 22. A perusal of the above facts shows that while a case of rash and negligent act has been made out by the Police in Vaivakawn P.S. Case No. 102/2017, against the driver of the truck, the Police have also made out against the driver of the bike under Section 181/196 of the MV Act, 1988, as the bike rider could not produce his driving license and insurance certificate. This aspect of the case has not been brought to the notice of the learned Tribunal by the respondents/claimants and even by the Police during recording of evidence. The evidence of the witnesses is only to the effect that there was rash and negligent act on the part of the truck driver and they have conveniently kept silent with the status of the criminal case. This Court finds that the respondent Nos. 1 to 4 and CW-2 have not been truthful, frank and open with the learned Tribunal. They are playing hide and seek with the Tribunal and thereby opening up an avenue for abuse of the process of the Court. Fraud should not be allowed to be perpetuated by any witness with the learned Tribunal, especially the Police, which in this case is CW-2. In the case of United India Insurance Co. Ltd. Vs. Rajendra Singh & Ors., (2000) 3 SCC 581 , the Apex Court has held that no Court or Tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would effect the very basis of the claim. 23. Interestingly, the owner of the bike and the bike rider have not been made parties before the learned Tribunal. 23. Interestingly, the owner of the bike and the bike rider have not been made parties before the learned Tribunal. There is also nothing to show that the bike driver Sh. Lalthianghlima had a driving license to drive a bike at the relevant time. A question arises as to whether the bike rider was rash and negligent by driving a bike, without having a driving license. 24. This Court is thus of the view that besides proving a case of rash and negligent act against the driver of the truck, what will also have to be decided is whether the driver of the bike was rash and negligent by driving a bike without having a license for the same and whether the said act endangers the life of others. In view of the above reasons, this Court is of the view that the present case is not with regard to this Court taking a hyper-technical approach to the case in hand, but is with regard to certain facts being suppressed in the evidence by CW-1 and CW-2, for reasons best known to them. This Court is accordingly of the view that the Judgment of the Apex Court in Mohar Sai & Anr. (Supra) is not applicable to the case in hand. 25. In view of the reasons stated above, this Court finds that the evidence adduced and the documents on record before the learned Tribunal does not conclusively prove that there was any rash and negligent act on the part of the driver of the truck. Assuming that there was some rash and negligent act on the part of the driver of the truck, the further question that has to be decided is whether the onus of paying the entire compensation amount could have been fastened solely upon the appellant, inasmuch as, the learned Tribunal was not made aware of the fact that Criminal Trial No. 1352/2017, arising out of Vaivakawn P.S. Case No. 102/2017 had also been filed against the bike rider Sh. Lalthianghlima, who did not have a driving license. The question of whether the bike rider was guilty of contributory negligence would thus have to be also seen. 26. This Court is accordingly of the view that the case should be remanded back to the learned Tribunal for having a de novo trial and by impleading the driver of the motor bike Sh. The question of whether the bike rider was guilty of contributory negligence would thus have to be also seen. 26. This Court is accordingly of the view that the case should be remanded back to the learned Tribunal for having a de novo trial and by impleading the driver of the motor bike Sh. Lalthianghlima and also the owner of the motor bike. Accordingly, this Court remands back the case to the learned Tribunal for a de novo trial as per the observations and directions given above. This Court is not inclined to go into the other issues raised by the appellant, as the said issues can be decided afresh in a de novo trial. Consequently, the impugned Judgment & Award dated 12.06.2019, passed by the MACT Aizawl in MACT Case No. 53/2017 is hereby set aside. The statutory deposit of Rs. 25,000/- be released to the appellant. Send back the LCR.