By the Court.—This appeal under Section 173 of the Motor Vehicles Act, 1988 has been preferred by the appellant The Oriental Insurance Company Ltd. against the award dated 26.11.2013 passed by the Motor Accident Claims Tribunal awarding a sum of Rs. 5,87,000/- to the claimants with 7% simple interest p.a. from the date of the filing of the claim petition. The liability to indemnify the said compensation has been saddled upon the appellant-insurance company as the offending vehicle was covered under a policy issued by it.

2. We have heard Sri S.C. Srivastava, learned counsel for the appellant-insurance company and Sri Ram Singh, learned counsel for the claimant-respondents No. 1 to 4. The respondents No. 5, 6 and 8 were unrepresented despite deemed service of notice, whereas respondent No. 7 was represented by Sri A.B. Singh, Advocate who had not turned up.

3. Learned counsel for the appellant-insurance company had made the following two submissions:

(1) The riders of the motorcycles had also contributed to the negligence as there were three persons on it; and

(2) The tanker involved in the accident was a gas tanker and the driver of the said vehicle had no licence to drive a hazardous goods vehicle, therefore, the liability to indemnify would not rest upon the appellant-insurance company.

4. The facts of the case reveal that the accident had taken place on 20.3.2011 and the vehicles involved in it were a motorcycle and a tanker. One Satyabhan aged about 34 years was carrying his ailing mother Smt. Prabhadevi to a hospital with one Banwari on the motorcycle when the accident took place.

5. The negligence of the driver of the tanker was proved by the eye-witness Praveen who was following his brother Satyabhan on another motorcycle alongwith one Roop Kishore. He had lodged the first information report and has proved that the tanker was being driven negligently and that despite all efforts of Satyabhan to avoid the accident for which purpose he took the motorcycle in Kachcha area the tanker hit the motorcycle due to which Satyabhan and his mother died on the spot. The site map of the accident as prepared by the police also proved that the tanker had hit the motorcycle on the Kachcha site. Nothing material could be extracted from the cross-examination of the aforesaid witness to prove otherwise. The appellant-insurance company as well as the owner failed to produce the driver of the tanker Rajesh Kumar in the witness box. The driver who himself happened to be party in the claim petition failed to turn up to say that he was not negligent in driving the vehicle. In these circumstances, the Tribunal had no option but to hold that the accident had occurred due to the sole negligence of the driver of the tanker.

6. Merely for the reason that there were three persons on the motorcycle which may be violation of the traffic rules, does not ipso facto establish that the motorcycle was being driven rashly or in a negligent manner or that it was out of control of its driver. The violation of traffic rules is altogether different from proving the fact of negligence in driving the motorcycle which may have contributed to the accident. It is no ones case that due to overloading the motorcycle got disbalanced or that its driver lost control over it. Thus, in the absence of any specific evidence to prove negligence on the part of the driver of the motorcycle which may have contributed to the accident, the argument that it was a case of contributory negligence cannot be accepted.

7. In the claim petition the description of the offending vehicle has been given as a tanker with its registration number. The appellant-insurance company filed its written statement wherein it accepted that the accident took place with the tanker in question. In the written statement no pleading was drawn to the effect that the tanker was carrying gas or that