Non-possession of a driving license does not constitute contributory negligence without evidence of rash driving; compensation was enhanced based on adjusted notional income.

JUDGMENT :

1. The claimants have filed this appeal seeking enhancement of compensation awarded by the Motor Accident Claims Tribunal, Special Sub Court, Tiruvannamalai in M.C.O.P. No.728 of 2013, dated 09.03.2022.

2. It is the case of the appellants/claimants that the husband of the 1^st claimant, father of the claimants 2 to 4 and son of the claimants 5 and 6 (5^th claimant died pending Original Petition and 6^th respondent also died pending appeal) namely Senthil died in a road accident that had occurred on 19.02.2011. It was the case of the claimants that the deceased was standing on the extreme left hand side in mud portion of the main road and the Tipper Lorry belonged to the 1^st respondent insured with the 2^nd respondent came in a rash and negligent manner and dashed against him. As a result of the accident, the deceased sustained grievous injuries and died in hospital. Therefore, a claim petition was filed seeking compensation of Rs.20,00,000/-.

3. The 1^st respondent remained exparte before the Tribunal. The 2^nd respondent/Insurance Company filed counter and resisted the claim on the ground that the accident had occurred only due to the negligence of the deceased. The 2^nd respondent-Insurance Company also denied the age, income and avocation of the deceased and sought for dismissal of the claim petition.

4. Before the Tribunal, the 1^st claimant was examined as PW.1 and one another witness was examined as PW.2. On behalf of the claimants, 5 documents were marked as Exs.P1 to P5. On behalf of the 2^nd respondent/Insurance Company, Taluk Supply Officer was examined as RW.1 and Typist, RTO Office, Villupuram, was examined as RW.2 and 3 documents were marked as Exs.R1 to R3.

5. The Tribunal based on the evidence available on record came to the conclusion that accident had occurred only due to the negligence on the part of the driver of the Tipper Lorry belonged to the 1^st respondent. However, the Tribunal fastened 15% contributory negligence on the part of the deceased on the ground that he did not possess valid driving licence at the time of accident. The Tribunal quantified the compensation at Rs.18,59,500/- and deducted 15% towards contributory negligence (i.e. Rs.18,59,500 – 15% = Rs.15,80,575/-). Aggrieved by the same, the claimants have come before this Court.

6. The learned counsel appearing for the appellants/claimants would submit that failure to hold driving licence is not a ground to fix contributory negligence on the part of the deceased, when there is no positive evidence to show that he had driven the vehicle in a rash and negligent manner. The learned counsel further submits that the deceased was employed in Bricklin and he was earning a sum of Rs.10,000/- per month at the relevant point of time. However, the Tribunal, fixed the notional income of the deceased at Rs.7,500/- per month and the same needs enhancement.

7. The learned counsel appearing for the 2^nd respondent/Insurance Company would submit that failure to hold driving licence is a violation of Motor Vehicles Act, 1988 and therefore, the Tribunal was justified in fixing 15% contributory negligence on the part of the deceased. The learned counsel further submits that the claimants have not produced any documents to prove the avocation and income of the deceased and hence, taking into revival circumstances, the Tribunal was justified in fixing Rs.7,500/- per month as notional income of the deceased.

8. The Tribunal based on the evidence of PW.1 and PW.2 and also contents of FIR marked as Ex.P1 and final report marked as Ex.P4 came to the conclusion that the accident had occurred only due to the negligence on the part of the driver of the 1^st respondent. However, it proceeded to fix contributory negligence only on the ground, the deceased failed to produce valid driving licence.

9. Non-possession of driving licence per se cannot be considered as a negligence contributing to accident, though it would amount to violation of law. In order to fasten contributory neglige