The burden of proof for contributory negligence lies with the owner and driver of the vehicle, and contributory negligence cannot be inferred solely based on the lack of a driving license.

( 1 ) THIS appeal is directed against the award dated 3. 3. 2000 passed by the Additional Motor Accidents claims Tribunal, Maihar, District Satna in claim Case No. 153 of 1997.

( 2 ) AS per the claimant-appellant, on 26. 8. 1997 he was returning on the scooter from Maihar to Jabalpur. When he reached near Itma Mandi, a truck No. UGY 8507 driven rashly and negligently by respond ent No. 1, owned by respondent No. 2 and insured with respondent No. 3 came from the opposite side and dashed his scooter. As a result, appellant and the pillion rider rajendra Bihari Pandey sustained grievous injuries. The appellant, therefore, filed a claim petition under section 166 of Motor vehicles Act, 1988, seeking compensation of Rs. 5,95,000 from the respondents.

( 3 ) THE respondents resisted the claim petition and denied the averments made in the claim petition. The Tribunal framed issues and after recording evidence held that the appellant is entitled for compensaion of Rs. 74,000. However, the Tribunal held that as the appellant was not having driving licence to drive the scooter apart from negligence of truck driver, there was contributory negligence on the part of the appellant to the extent of 50 per cent. Accordingly, tribunal directed respondents to pay compensation of Rs. 37,000 to the appellant. Feeling aggrieved, the appellant has filed this appeal for enhancement.

( 4 ) MR. Akshay Dharmadhikari, learned counsel for the appellant has contended that the approach of the Tribunal in holding the appellant liable for contributory negligence on the ground that the appellant was not holding a licence to drive the scooter, is erroneous. He contended that merely for the reason that appellant was not holding driving licence, it cannot be inferred that there was contributory negligence on his part. He also contended that the compensation awarded is on lower side and deserves to be enhanced. On the other hand, Mr. S. K. Rao, learned senior counsel for the insurer has supported the view taken by the Claims Tribunal and has contended that admittedly, the appellant was not holding driving licence to drive the scooter, in the circumstances his negligence has rightly been inferred by the Tribunal.

( 5 ) IN order to prove the accident the appellant examined himself as AW 1. He deposed that when he and Rajendra Bihari pandey reached Itma Mandi, a truck No. UGY 8507 came at excessive speed. It was driven by respondent No. 1 rashly and negligently. On seeing the truck he stopped his scooter on the side of the road. However, the truck dashed the scooter. He further deposed that he suffered fracture injury in his left leg. As per disability certificate, exh. P51, there was shortening of left leg by 2" and the permanent disability was to the extent of 18 per cent. In rebuttal Uma-shankar, NAW 1, was examined. He is n1ot an eyewitness to the accident. The driver of the truck was not examined by the respondents.

( 6 ) IN view of the aforesaid evidence it is clearly established that the appellant was driving the scooter with due care and caution and, therefore, merely because he had no driving licence he cannot be held guilty of contributory negligence. It was not the case of the respondents that the appellant had no knowledge of driving the scooter. In our view the onus of proof that the appellant was driving the scooter rashly and negligently was on the owner and driver of the truck and unless the said burden is discharged by leading positive evidence the presumption of contributory negligence cannot be drawn only on the ground that the appellant was not possessing a driving licence. The driver of the truck, respondent No. 1, did not enter the witness-box to controvert the evidence of appellant. In this view of the matter the tribunal has erred in holding that there was contributory negligence on the part of the appellant.

( 7 ) IN the said accident the appellant's left leg was fractured and as per disability certificate, Exh. P51, the s