The absence of a driving license does not automatically imply negligence in causing an accident.

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 autorikshaw owned and driven by the first respondent. The second respondent is the insurer of the autorickshaw. 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. Heard the learned counsel for the appellants as also the learned counsel for the second respondent, the insurer of the vehicle.

4. 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:-

"If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini-truck which was being driven rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence.

A similar view has been taken by this Court in Prajesh Kumar vs. Saji John and Others [2009 (1) KHC 26]. In the light of the above decisions, in the absence of any independent evidence on the side of the second respondent to establish that the accident occurred on account of the negligence of the appellant in M.A.C.A.No.1856 of 2011, I am of the view that the finding of the Tribunal that the negligence of the appellant in M.A.C.A.No.1856 of 2011 also contributed to the cause of the accident is unsustainable.

5. Coming