IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.443 OF 1991 (1) Managing Director Maharashtra Tourism Development Corporation Limited (2) Director of Insurance, Maharashtra State )..Appellants Versus (1) Smt.Mangal Eknath Chougule age-37 yrs. (2) Uday Eknath Chougule age-13 yrs. (3) Vinod Eknath Chougule age-9 yrs. )..Respondents ---- Mrs.G.P.Mulekar AGP for the appellants. Mr.Anil A.Desai for the respondents. ---- Coram : R.S.Mohite,J Coram : R.S.Mohite,J Coram : R.S.Mohite,J Date : 11.6.2008. Judgment :- 1. This is a First Appeal filed by the appellants who are the original opponents in Motor Accident Claims Application No.133 of 1986. The appeal impugns a judgment and order passed by the Motor Accident Claims Tribunal in Motor Accident Claims Application No.133 of 1986. By the impugned judgment and order which has been delivered on 3.1.1990, the present appellants were directed to jointly and severally pay compensation of Rs.1,97,000/- to the applicant nos.1, 2, & 3 : 2 : (present respondents). That applicant no.1 Mangal Eknath Chougule was the wife of the deceased Eknath. Applicant nos.2 & 3 were their minor children. The amount was awarded @ 12% p.a. from the date of the application i.e. 25.8.1986 till payment and with proportionate costs of the application. 2. Brief facts of the case are that on 16.6.1986, at about 4.30 P.M. the deceased Eknath Jairam Chougule was proceeding on motor cycle No.MGI 2886 from Kolhapur to Panhala. The motor cycle which he was driving belonged to his friend Prakash Mehta. He was alone on the motor cycle. According to the claimants he was driving his motor cycle on the left side with moderate speed. He reached the point known as Nalavade vasti. It was a plain road and the ghat road was just to begin. At that time, a luxury bus bearing no.MRL 6670 belonging to appellant no.1/Corporation came from the opposite side i.e. from the road leading from Panhala to Kolhapur in a high speed and dashed against the motor cycle driven by Eknath. Both, motor cycle and Eknath were thrown away by the side of the road and Eknath sustained serious injuries. Motor cycle was badly damaged to the tune of Rs.6,000/-. Eknath was treated at Kolhapur. He died on the next day on 17.6.1986 due to the injuries sustained by him in the accident. The claimants alleged that accident took place due to the rash and negligent driving of : 3 : the driver of the luxury bus. 3. In their say, the opponents denied the case of the claimants. It was contended that the bus was coming down at a slow speed of about 10 to 15 k.m. per hour and that deceased was driving from the wrong side and was driving at high speed of about 40 to 45 k.m per hour. It was contended that driver of the bus was not negligent and in fact, deceased was rash and negligent. It was also contended on behalf of the opponent that the driver of the motor cycle did not possess a driving licence. 4. On behalf of the claimants PW-1 Mangal Eknath Chougule was examined but she had no personal knowledge about the accident. Four other witnesses i.e. (PW 2 to PW 5) were examined by the applicants but their evidence was on the point of income earned by the deceased Eknath. On behalf of the opponent PW 1-Babu Krishna Haval was examined and this witness was the sole eye witness to the accident, being the driver of the luxury bus. 5. I have heard both sides and perused the record. On behalf of the appellants it was contended that the opponent has specifically pleaded that the owner of the motor cycle had no licence. The wife of the deceased stepped into the witness box and the onus was on the wife to show that her husband had a : 4 : licence. When asked a question as to whether the husband had a licence, the wife did not specifically admit that he had no licence but claimed to have no knowledge. It was therefore, contended that an adverse inference should be drawn to the effect that Eknath was negligent. It was contended that under Section 3 of the Motor Vehicles Act 1988, the requirement of having a licence was a legal necessity and that driving without a licence was an offence. On this aspect, the trial Court held that driving without a licence and driving rashly and negligently were 2 different things. I am inclined to agree. It may be that person has never acquired a driving licence but may be proficient in driving a vehicle. It was also be that a person may have had a licence for many years, but at a given point of time, his licence having expired, he may not be a holder of a licence. Driving without a licence ipso-facto cannot necessarily lead to a conclusion that the vehicle driving by such a person would be driven rashly and negligently. It is a question of fact which has to be proved by evidence. The learned AGP relied upon a judgment of this Court delivered in the case of M/s.United India Insurance M/s.United India Insurance M/s.United India Insurance Co. Ltd., V/s. Lilabai Ramesh Marathe Co. Ltd., V/s. Lilabai Ramesh Marathe Co. Ltd., V/s. Lilabai Ramesh Marathe reported in 2006 (2) ALL MR 681. The facts of that case were slightly different. The driver of the vehicle was holding a learner’s licence. The pillion driver was not holding a driving licence. In the accident the : 5 : pillion driver lost his life and in such circumstances, it was held that the insurance company was not liable. In that case it has been held that the driver of the scooter on which the deceased was seated as a pillion driver was himself rash and negligent. In this background, it was also held that the pillion driver also was not liable to be paid any compensation by the insurance company since he was a pillion driver seated on the vehicle in prohibition of rule 16 which prohibited a driver of the vehicle, holding learner’s driving licence, to drive such vehicle, if the person riding on the pillion seat does not hold valid licence, to drive the vehicle. 6. In my view, the primary reason for compensation granted to the victim in an accident is a fact of negligent driving by the driver of the offending vehicle. There is no licence to any person driving a vehicle rashly and negligently and to knock down a person driving another vehicle whether they hold a licence or not. The duty and care not to drive rashly and negligently is upon all drivers and the compensation which is payable by a driver of an offending vehicle is for his own rash and negligent act. In a given case there might be contributory negligence. On the question of the deceased Eknath driving without a licence, I am also not convinced that he was not a holder of a licence. There is no : 6 : positive record to show that he was not holding any such licence. His wife was really a 3rd party and may not have known the details of her husband. In fact, in the present case the appellants are the State owned Corporation. The State of Maharashtra has the entire record relating to grant of driving licences. If they alleged that Eknath was having no licence, this was a fact within their knowledge and they could have led evidence of an appropriate officer from the RTO department to indicate that Eknath had been driving without a licence. 7. It was next sought to be contended that the only evidence relating to the accident was the evidence led by the opponent being the evidence of the driver of the luxury bus. I have perused his evidence. No doubt, he contends that the motor cycle driver was coming from the wrong side at a high speed of about 40 to 45 k.m. per hour, I am inclined to agree that this evidence is falsified by the panchanama which shows the motorcycle lying on the western side (right side) of the road. The witness has also admitted that the driver’s side headlights of the luxury bus were also damaged. This also indicates that the motor cycle driver was on the right side. Even assuming that driver was of the speed of 40 to 45 k.m. per hour, it cannot be said to be an excessive speed. Excessive speed does not ipso facto amount to rash and negligent. The driver also : 7 : admitted that he was aware of the traffic rules that he must give way to the ascending traffic. In my view, view taken by the trial Court cannot be faulted. It is a possible view based upon the evidence. 8. No other arguments have been advanced relating to quantum. In the circumstances, I am not inclined to interfere with the impugned judgment and decree. The First Appeal therefore, stands dismissed. The monies should be dis-invested and distributed in accordance with the impugned judgment and decree alongwith interest accruing on each amount. (R.S.Mohite,J) (R.S.Mohite,J) (R.S.Mohite,J)