HAREESH T.A. Vs. SANTHOSHKUMAR AND ORS.

JUDGEMENT

(1.) THE claimants in two claim petitions before the Motor Accidents Claims Tribunal are challenging in these appeals the common award passed in the claim petitions.

(2.) THE appellant in M.A.C.A. No. 1856 of 2011 was the rider and the appellant in M.A.C.A. No. 1947 of 2011 was the pillion rider of a motor cycle respectively. The accident occurred on account of the collision of the said motorcycle with the auto -rickshaw owned and driven by the first respondent. The second respondent is the insurer of the auto -rickshaw. The first respondent remained ex -parte. The second respondent contested the claim petition, contending, among others, that the accident occurred on account of the negligence of the appellant in M.A.C.A. No. 1856 of 2011. The Tribunal accepted the contention of the second respondent in part and found that the appellant in M.A.C.A. No. 1856 of 2011 was negligent to the extent of 40% in causing the accident. Though the appellant in M.A.C.A. No. 1947 of 2011 was not found responsible for the accident, the Tribunal had reduced the compensation payable to him also proportionately on that basis. As far as the appellant in M.A.C.A. No. 1856 of 2011 is concerned, the Tribunal passed an award in his favour directing the insurer to pay a sum of Rs. 19,595/ - by way of compensation, after holding that the just compensation due to him is Rs. 32,660/ -. Likewise, as far as the appellant in M.A.C.A. No. 1947 of 2011 is concerned, the Tribunal passed an award directing the insurer to pay a sum of Rs. 28,010/ - by way of compensation, after holding that the just compensation due to him is Rs. 46,680/ -. The appellants are aggrieved by the said decisions of the Tribunal.

(3.) AS far as the contributory negligence aspect is concerned, the case set up by second respondent is that the appellant in M.A.C.A. No. 1856 of 2011 was not holding a licence to drive the vehicle involved in the accident and therefore, the negligence on his part is to be presumed. Though the second respondent had raised a contention that it is on account of the negligence of the appellant in M.A.C.A. No. 1856 of 2011 that the accident had occurred, no evidence was let in by the second respondent in support of the said contention. Instead, they attempted to sustain the said contention solely based on the fact that the appellant in M.A.C.A. No. 1856 of 2011 was not holding a licence. In Sudhir Kumar Rana v. Surinder Singh & Ors. [ : AIR 2008 Supreme Court 2405], the Apex Court held that merely for the reason that a person who was driving a vehicle was not having a driving licence, it cannot be presumed that he is negligent in causing the accident. Paragraph 8 of the said judgment reads thus: