The absence of a driving licence does not automatically imply contributory negligence, and the specific circumstances of the case must be considered in determining liability.

N.K. Mody, J.

Being aggrieved by the award dated 23.3.2005 passed by M.A.C.T., Bhanpur in Claim Case No. 11 of 2004 whereby the claim application filed by the appellants was allowed and in a death case a sum of Rs. 1,67,000 was assessed as compensation, out of which 50 per cent was deducted on account of contributory negligence on the part of deceased, the present appeal has been filed. Short facts of the case are that the appellants filed a claim petition alleging that Deepak was son of appellant Nos. 1 and 2, husband of appellant No. 3 and the father of appellant No. 4 who was going on motorbike on 12.11.2003 along with Rafeeq and Firoz. It was alleged that on that day at about 5.30 p.m. the said motorbike met with an accident with a jeep bearing registration No. MP 14-C 2803 which was being driven rashly and negligently by respondent No. 1, owned by respondent No. 2 and insured with respondent No. 4. It was alleged that since accident occurred because of rash and negligent driving of jeep driver, therefore, claim petition be allowed and compensation be awarded. The claim petition was contested by respondent No. 4 on various grounds including the ground that deceased was not possessing a valid driving licence and because of rash and negligent driving by the deceased, the accident occurred. After framing of issues and recording of evidence learned Tribunal allowed the claim petition and assessed compensation as stated above but awarded 50 per cent amount after deducting 50 per cent on account of contributory negligence, against which the present appeal has been filed.

2. Learned counsel for appellants submits that learned Tribunal committed error in holding the deceased liable for the accident to the extent of 50 per cent. Learned counsel submits that criminal case was registered against respondent No. 1. It is submitted that it is true that deceased was not possessing a driving licence but only because the deceased was not possessing a driving licence, the deceased cannot be held liable for the accident to the extent of 50 per cent. For this contention reliance is placed on a decision in the matter of Sudhir Kumar Rana Vs. Surinder Singh and Others, (2008) 12 SCC 436, wherein the offending vehicle was being driven by a minor who was not possessing a driving licence and there was a collision between a mini truck and two-wheeler. In this case the Hon'ble Apex Court held that :

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.

3. The learned counsel submits that in absence of any evidence in rebuttal only because the deceased was not possessing a driving licence, it cannot be said that deceased was equally liable for the accident. Learned counsel submits that it is also true that three persons were travelling on the said motorbike but in evidence nothing has come on the basis of which it can be said that cause of accident was travelling of 3 persons on a motorbike. For this reliance is placed on a decision in the matter of Devi Singh Vs. Vikram Singh and Others, (2008) ACJ 393, wherein Full Bench of this court has held that violation of section 128 per se by a motorcyclist does not raise contributory negligence. So far as amount of compensation is concerned, learned counsel submits that accident is of the year 2003. The income of the deceased has been assessed on notional basis while the documentary evide