IN THE HIGH COURT OF JUDICATURE AT PATNA MA NO.90 OF 2005 KUMARI MINA ARYA, WIFE OF LATE NAGESHWAR PD.SINGH @ NAGESHWAR PD., VILLAGE PRANCHAK, PS RAJAULI, DIST. NAWADAH… APPELLANT. VERSUS 1. THE DIVISIONAL MANAGER ,DIVISIONAL OFFICER, NEW INDIA ASSURANCE COMPANY LTD. NAGMATIYA ROAD, GAYA. 2. UDAY SINGH, SON OF KAMESHWAR SINGH, AT & P.O. NAWADAH, PS ITHABARI, DISTRICT CHATRA. 3. SONU KUMAR, MINOR AGED ABOUT 2 YEARS .. RESPONDENTS. FOR THE APPELLANT : MR.R.S.PRADHAN, SR. ADVOCATE WITH MR. RAJEEV NAYAN, ADVOCATE. FOR THE RES : MR. R.K.P.SINGH, ADVOCATE. 8 16.1.2009 This appeal is directed against the order, dated 4.1.2005 passed by the 4th Addl. District Judge-cum-Claims Tribunal, Nawadah in Motor Vehicle Claims Case No. 1/2002/35/2003. The compensation amount is Rs.300,000/- which has been deducted and the Insurance Company has been asked to pay Rs.1,50,000/- by way of compensation as well as Rs.5000/- loss of consortium. The court has also awarded Rs.2000/- as funeral expenses of the deceased and as such net amount of compensation awarded is Rs.1,57,000/-. The court below has held that the Insurance Company and the owner should share equally in the payment of the award amount. The facts are that the deceased was driving a motor cycle on 12.8.2001 on Rajauli-Nawadah by-pass. The specific claim which has been pleaded in the application is as follows : “On the unfortunate day and time, the deceased was going on his motor bike bearing Suzuki no. BHB 9621 and a truck no. BR-47-1165 coming from the side of Nawada proceeding towards Rajauli being driven very rashly and negligently dashed the deceased motor cycle by going towards right side as the deceased vehicle which 2 was on the kuchha flank of the road, resulting in instantaneous death. The court after considering the pleadings and the findings based on the first information report (Ext. 3) and the evidence of the witnesses, which has not been controverted by the Insurance Company came to a finding that the accident was caused by truck no. BR-47-1165 due to rash and negligent driving. After giving the findings that the truck driver was responsible for rash and negligent driving, the court below for no reason has concluded that it is a case of contributory negligence of the deceased as well as the driver of the said truck. Learned counsel appearing for the appellant has challenged the findings of the court below that the case is one of contributory negligence. It has been submitted that there is no material before the court to conclude that it is a case of contributory negligence and the mere fact that the licence of the deceased driving the motor cycle was not produced, would not necessarily mean that he was careless and negligent and contributed to the accident. Merely because two vehicles are involved in an accident, the case automatically does not fall within the purview of contributory negligence. The court judging this fact would have to consider the pleadings, the facts and the evidence led on this issue to come to a finding that the deceased or the other persons affected by the accident had contributed in some way in causing the accident. In the present case the facts that have come on record reveal that the motor cycle was on the right side of the road which is 3 the right direction if a person is travelling from Rajauli to Nawadah, whereas the truck in question dashed against the motor cycle on the right side although the truck should have maintained its lane and remained on the left side of the road. These facts are not only supported by pleadings but are also supported by the F.I.R. and the evidence led on this question. As such the contention of learned counsel for the New India Insurance Company Ltd. that the facts of the case would reveal that there was negligence by the husband of the appellant are not supported from the materials on record. The next contention raised by the counsel for the Insurance Company is that the appellant was not able to produce the driving licence of the deceased would lead to the conclusion that he was not entitled to the driving on the said road without licence. With respect to this contention I may point out that the claimant and the brother of the deceased who have been examined as A.W. 1 and 2 have specifically stated that the deceased had a driving licence. However, it cannot be denied that it was not produced by the claimant to substantiate the fact stated in her evidence. This question has been considered by the Apex court in the case of National Insurance Company Limited vs. Swarn Singh (2004) 3 S.C.C. 297. The court has noticed that the person driving the motor cycle must fulfill the condition s of the Act and should have a valid licence to drive a vehicle. However, the court has also held that it would be incumbent on the Insurance Company to establish that there was a breach of the Motor Vehicles Act. In the present case 4 A.W. 1, i.e. the wife of the deceased has specifically stated that her husband had a licence. Similarly, the brother of the deceased has also stated that the deceased had a licence. The wife, A.W.I has further stated in her cross examination that she could not produce the licence because it was not in her possession. It has been stated that the deceased was an agent of the Life Insurance Corporation and had also a shop for which he had a certificate which is proved by Ext. I. The submission, therefore, is that this is not a case where evidence is completely lacking with respect to the deceased being a licence holder and the fact would have easily been verified by the Insurance Company if they had any doubt with respect to this fact. Once the court has come to a finding that the truck driver was negligently and rashly driving the vehicle on the road so as to cause an accident, there can be no doubt about the liability of the driver / Insurance Company with respect to payment of compensation to the person(s) affected by the rash and negligent driving. The facts in the case of Mepherson vs. Shiv Chaaran Singh, 1998 ACJ 601 (Delhi) are somewhat different to the facts of the present case and, therefore, it cannot be said that the aforesaid case would clearly cover the present case and this court ought to hold that both owner and the insurer were jointly and severely liable for payment of compensation. No party can absolve itself of the liability of payment of compensation for negligent and rash driving. In the facts of this case, therefore, I find that the Insurance Company would be liable to pay the entire compensation 5 amount of Rs.300,000/- along with 6% interest per annum as awarded by the court below as it cannot be held that the deceased was responsible for negligent or rash driving. In the result, this appeal is allowed. No order as to costs. Haque/A.F.R. (Sheema Ali Khan, J.)