JUDGMENT : Susmita Phukan Khaund, J. Heard learned counsel Ms. S. Roy for the appellant and learned counsel Mr. I. H. Borbhuiya for the claimant/respondents and learned counsel Mr. A. I. Uddin for respondent No. 3. 2. This appeal is preferred by the National Insurance Company Ltd (herein after referred to as the appellant or the insurer). The claimant- Sri Madan Paul; Sri Pachu Gopal Majumdar, owner of vehicle AS 02E/6346; Md. Nurul Haque, owner of Vehicle AS 02E/2386; Sri Ganesh Das, driver of AS 02E/6346; and Md. Khairul Islam, driver of AS 02E/2386, are arrayed as respondent nos. 1, 2, 3, 4 and 5 respectively. 3. The insurer is aggrieved by the judgment and award dated 02.07.2012 passed by learned Member, MACT, Sankardev Nagar, Hojai in connection with MAC Case No. 411(N)/11, awarding a compensation of Rs. 5,70,000/- to the claimant and directing the appellant to pay compensation along with interest @ 8% p.a. from the date of filing of the petition till payment. 4. The genesis of the case was that on 30.05.2011 at about 12:30 p.m., the claimant’s brother was working under a standing truck bearing registration No. AS021/2386 at Lankajuri, Modertoli under Doboka P.S. At that time, another vehicle bearing registration No. AS02E/6346, a dumper driven in a rash and negligent manner with excessive speed hit the standing truck which was parked on the side. As the truck was parked owing to mechanical defect, Sri Dharmendra Pal (herein after referred to as the deceased), who was working under the standing truck sustained injuries as a result of the accident and he died on the spot. His body was forwarded to B. P. Civil Hospital, Nagaon for post-mortem. The claimant had to incur expenses to the tune of Rs. 50,000/- for the funeral expenses. An FIR regarding this incident was lodged and registered as Doboka P.S. Case No.72/2011 under Sections 279 /304(A)/427 of the INDIAN PENAL CODE (IPC for short). 5. The claimant prayed for compensation of Rs. 12 lacs in the corresponding MAC Case No. 411/2011. The owner of the allegedly speeding truck, the owner of the standing truck, the driver of the allegedly speeding truck, the driver of the standing truck, the insurer of the allegedly speeding truck and the insurer of the standing truck were arrayed as respondent Nos. (1) Sri Pachu Gopal Majumdar, owner of vehicle AS 02E/6346; (2) Md. The owner of the allegedly speeding truck, the owner of the standing truck, the driver of the allegedly speeding truck, the driver of the standing truck, the insurer of the allegedly speeding truck and the insurer of the standing truck were arrayed as respondent Nos. (1) Sri Pachu Gopal Majumdar, owner of vehicle AS 02E/6346; (2) Md. Nurul Haque, owner of Vehicle AS 02E/2386; (3) Sri Ganesh Das, driver of AS 02E/6346; (4) Md. Khairul Islam, driver of AS 02E/2386; (5) National Insurance Company Ltd, Kolkata Branch. Insurance Company of AS02E/6346; and (6) Name of Insurance Company for vehicle AS02E/2386 in MAC No. 411/2011. Against the claim petition by the claimant, O.P. Nos. 2, 4 and 5 contested the proceeding and filed written statement whereas the O.P. Nos. 1, 3 and 6 did not contest the proceeding. O.P. Nos. 2, 4 and 5 through separate written statements have denied their liability. It was admitted by O.P. No. 2 that the truck bearing registration No. AS02E/2386 was mechanically defective and was thereby parked. It was averred that as the deceased was working under the truck, the owner cannot be held liable. 6. On the other hand, the O.P. No. 2 has stated that he can be exonerated from his liability as his truck was duly insured by the Insurance Company. The vehicle had all the valid documents like registration certificate, fitness certificate and the driver was holding a valid driving license i.e., F 29 /KA/09/TV, which was valid at the time of the accident as the driving license was valid up to 06.02.2012. 7. The insurer on the other hand has questioned the age and income of the deceased. It is submitted on behalf of the appellant who was the insurer of the truck No. AS021/2386 bearing registration No. AS02E/6346 that the truck was parked without any precautionary measures on the road and the truck No. AS023/6346 hit the standing truck accidentally. It is further submitted that the claimant is not entitled to any compensation as he is not a minor. Moreover, it is also contended that the multiplier 18 was erroneously used to calculate the loss of dependency instead of multiplier 17 as per the decision of the Hon’ble Supreme Court in Sarala Verma and Ors vs. Delhi Transport Corporation and Anr , reported in (2009) 6 SCC 121 . 8. Moreover, it is also contended that the multiplier 18 was erroneously used to calculate the loss of dependency instead of multiplier 17 as per the decision of the Hon’ble Supreme Court in Sarala Verma and Ors vs. Delhi Transport Corporation and Anr , reported in (2009) 6 SCC 121 . 8. Per contra, learned counsel for the owner of the truck who is arrayed as respondent No. 3 in the present appeal laid stress in his argument that the plea of lack of precautionary measures was not taken in the original pleadings. Moreover, the plea of composite liability was also not taken during the stage of trial and now at the appellate stage, a new plea cannot be introduced. 9. Learned counsel for the respondent No. 3 has relied on the decision of the High Court of Judicature of Sikkim, Gangtok, wherein vide order dated 21.11.2024, it has been observed that:- Having considered the opposing arguments advanced by Leamed Counsel for the parties in extenso and having perused the records placed before me, the questions that fall for consideration before this Court are; 1. Can a new ground be urged in Appeal when it was not raised before the MACT. 2. Is the Appeal maintainable sans an application and consequently an Order under Section 170 of the MV Act, 1988, to enable the Appellant to raise grounds in Appeal beyond those prescribed under Section 149(2) of the MV Act? (i) While addressing the first question formulated, appositely, it has to be noticed that the question of vis major was never raised by the Appellant before the Learned MACT All that the Appellant averred in the Written Statement at Paragraph (h) is that; “……….., it is the case of the claimants that the accident occurred due to the earthquake. This averment itself appears to be erroneous as in the Claim Petition at Paragraph 27 the Claimant has inter alla averred that; “...…….. When the vehicle driven by Bikash Pradhan reached Chuba under Ranipool P.S, an earthquake hit the area, triggering landslide and rockslide. The driver could not stop the vehicle even when the earthquake was continuing since it was in high speed and failed to take necessary preventive measures by stopping the vehicle……. “. When the vehicle driven by Bikash Pradhan reached Chuba under Ranipool P.S, an earthquake hit the area, triggering landslide and rockslide. The driver could not stop the vehicle even when the earthquake was continuing since it was in high speed and failed to take necessary preventive measures by stopping the vehicle……. “. Be that as it may, the Supreme Court dealt with a similar circumstance viz., a new ground raised in Appeal in Rajesh Kumar alias Raju vs. Yudhvir Singh and Another and observed as follows; “ 11 . ……………………. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time." (ii) In Modern Insulators Ltd. vs. Oriental Insurance Co. Ltd , the Supreme Court while again considering the fact of a new ground raised in Appeal held as follows; " 10. We may refer to the next ground on which the appeal has to be allowed. It is a settled position of law that in an appeal the parties cannot urge new facts. From the pleadings of the respondent before the State Commission it is found that the respondent pleaded that the property damaged was not covered under the insurance policy. This plea was given a go-by before the National Commission and a new plea was taken up in the grounds of appeal that the terms and conditions of the insurance policy were violated by the appellant by using used kiln furniture. The National Commission accepted this new ground and allowed the appeal, which in our opinion is not sustainable in law." (iii) In view of the settled position of law as expounded by the Supreme Court hereinabove, it needs no reiteration that a new ground cannot be urged in Appeal when it was not raised at all before the Learned MACT. Hence, the argument pertaining to vis major being a new ground in Appeal, is not sustainable in law and is accordingly disregarded. The first question stands answered accordingly." 10. Hence, the argument pertaining to vis major being a new ground in Appeal, is not sustainable in law and is accordingly disregarded. The first question stands answered accordingly." 10. Learned counsel for the claimant laid stress in his argument that the deceased was a bachelor and 50% ought to have been deducted as personal expenses which was not so in the present case. Decision of the Tribunal:- 11. It has been held by the learned Tribunal, MACT, Hojai, Sankardev Nagar that the claimant has given all the required details through the claim petition which reflects the name of the insurance company and the Policy No. being 150503167389 of the National Insurance Company Ltd. To substantiate his plea, he has stated as PW1 that the accident occurred on 30.05.2011, when his brother Dharmendra Pal was working under the standing truck bearing registration No. AS02E/2386 at Lankajuri, Modertoli. At that time, another vehicle bearing registration No. AS021/6346, a dumper proceeding with excessive speed hit the back of the standing truck which was parked on the side owing to mechanical defect. His brother succumbed to the injuries sustained as a result of the injuries. His brother was working in a garage at Velloguri with a monthly income of Rs. 9000/-. It was observed by the learned Tribunal that the claimant’s brother who was working under the mechanically defective truck died as a result of the accident and the rash and negligent act of the driver of the vehicle could be deciphered. 12. It has been held by the learned Tribunal that the evidence of PW1 has been substantiated by the evidence of Birendra Paul. Birendra Paul stated that he had witnessed the accident which took place at a distance of about 100-150 meters. At that time, the deceased was working under the standing truck. He also accompanied the brother of the deceased to the hospital. He has also affirmed that neither the driver nor the owner of the standing truck was present at the time of the accident. 13. It was held by the Tribunal that as the evidence of PW1 and PW2 have substantiated the pleadings, it has been proved that the vehicle bearing registration No. AS021/5345 was the offending vehicle. It was also held by the Tribunal that the owner of the offending vehicle ought to be exonerated as the vehicle was duly insured as the Policy no. It was also held by the Tribunal that the owner of the offending vehicle ought to be exonerated as the vehicle was duly insured as the Policy no. 150503167389 issued by the National Insurance Company Ltd. was valid at the time of the accident. The policy was valid up to 31.03.2011. 14. I record my concurrence to the decision of the learned Tribunal. The learned Tribunal has recorded sound reasonings and there appears to be no ground to interfere with the decision of the learned Tribunal 15. It has surfaced through the evidence that one truck was standing owing to mechanical defect whereas the other truck was speeding and this speeding truck was held to be the offending vehicle. The plea of composite liability is therefore not relevant in this case. When the appellants have not raised the issue on composite liability or contributory negligence, the claimant and the other respondents were also not accorded an opportunity to cross-examine the witnesses on the issue of composite liability. 16. In view of my foregoing discussions, the judgment and award dated 02.07.2012 passed by learned Member, MACT, Sankardev Nagar, Hojai in connection with MAC Case No. 411(N)/11, is hereby upheld. 17. Appeal is dismissed as the appeal is bereft of merits. 18. Send back the Trial Court Records.