Hon’ble Arvind Kumar Tripathi-II, J.—Heard learned counsel for the appellant and learned counsel for the opposite parties.

2. The present first appeal from order has been filed by Oriental Insurance Company Ltd. against award dated 24.11.2004 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No. 8, Sitapur in Motor Claim Petition No. 175/2001 “Smt. Vidyawati and others v. Vishambhar Nath and others) by which learned Tribunal has allowed the award and directed the Oriental Insurance Company Ltd. to pay Rs. 1,77,300/- (Rs. one lakh seventy seven thousand three hundred) alongwith 8% simple interest per annum from the date of the appeal till the date of actual payment.

3. It has been mentioned in the claim petition that on 11.5.2001 at about 7.00 p.m. Khushi Ram S/o Late Panchu (deceased) was going to Kutubpur from Village Bisehari on Motor-Cycle No. U.P. 34/5592 and as soon as, he reached near Sudhauili Biswa road Village Tikra, Tractor No. UP34A/1296 being driven by its driver rashly and negligently hit the motorcycle due to which he died on the spot. At the time of accident Khushi Ram was working as Sales man in Sadhan Sahkari Samiti earning Rs. 6,000/- per month. By filing this claim petition an amount of Rs. 5,00,000/- had been claimed.

4. Opposite party No. 1, did not file any written statement. During pendency of the claim petition, he died and his legal heirs and opposite parties No. 2 filed their written statement alleging that the owner of Tractor No. U.P.34A/1269 and the tribunal was insured with the Oriental Insurance Company Ltd. Station Road Sitapur. They denied the accident and submitted that at the time of accident Manjeet Kumar driver was having valid and effective driving licence. Khusi Ram was driving the Motor-Cycle U.P. 34/5592 but the owner and insurer of the Motor-cycle were not made party. Not a single word has been said in respect of the driving licence of deceased Khushi Ram and the registration certificate, and insurance of the Motor-cycle.

5. The Oriental Insurance Company filed its written statement denying the fact that Tractor No. U.P.34A/1269 was insured with them, it was also submitted that driver was not having valid and effective driving licence and the petition is bad for non-joinder of owner and insurer and driver of the Motor-cycle, tractor driver was not negligent in the driving of the Truck. After perusal of the pleading of the parties following issues were framed;

(i) Whether an accident took place on 11.5.2001 at about 7.00 p.m. while Khushi Ram was going on his Motor-cycle U. P. No. 34/5592 from Bishesra to Kutubpur Tractor No. U.P.34A/1269 being driving rashly and negligently hit the motor-cycle in which Khushi Ram died on the spot.

(ii) Whether the petition is bad for non-joinder of owner and insurer of the motorcycle U.P.43/5592.

(iii) Whether truck driver was having valid and effective driving licence at the time of accident, if so its effect?

(iv) To what compensation if any claimants are entitled and from whom and how much?

6. To prove the accident, certified copy of the FIR, certified copy of postmortem report, certified copy of charge-sheet were filed Smt. Vidyawati examined herself as P.W.1, Suresh Kumar as P.W.2. From the side of opposite parties, photocopy of registration certificate of tractor, photocopy of Insurance cover note and photocopy of driving licence was filed. Manjeet Kumar was examined as O.P.W. No. 1.

7. After going through the record and arguments learned tribunal held while deciding issue No. 1 that the contributory negligence of the truck owner was 75% and 25% was of the motor-cycle driver. While deciding issue No. 2 the Tribunal decided that since motor-cycle owner and insurer were not made party, hence, the compensation is to be lessened to the tune of 25%, which motor-cycle insurer were liable to pay. While deciding issue No. 3. the Tribunal held that driver of the tractor was having valid and effective driving licence. While