Neutral Citation No. - 2025:AHC-LKO:44299 Court No. - 8 Case :- FIRST APPEAL FROM ORDER No. - 70 of 2016 Appellant :- Divisional Manager Oriental Insurance Comp.Ltd. Respondent :- Smt. Nisha Verma And Ors. Counsel for Appellant :- Sumayya Kidwai Counsel for Respondent :- Amit Verma,Ravindra Pratap Singh Hon'ble Jaspreet Singh,J. 1. Heard Ms. Sumayya Kidwai, learned counsel for the appellant and Sri Ravindra Pratap Singh, learned counsel for the claimants-respondent Nos.1 and 2. 2. The instant appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988, assailing the award dated 09.10.2015 passed by Motor Accident Claims Tribunal (hereinafter referred to as 'Tribunal')/ Additional District Judge, Court No.6, Barabanki in Claim Petition No.0000302/2014, whereby, in a death case, a sum of Rs.3,33,500/- along with 7% interest per annum has been awarded in favour of the claimants- respondent Nos.1 and 2. 3. The submission of learned counsel for the appellant is two fold :- (i) It is urged that it was a clear case of contributory negligence, which has not been appropriately considered by the Tribunal, thereby vitiating the award. (ii) It is further urged that the deceased did not possess a driving licence and was himself responsible for the accident; hence, no claim could have been awarded. Consequently, the appellant- Insurance Company could not be directed to indemnify such an award. 4. The aforesaid submissions was controverted by the learned counsel for the claimants-respondent Nos.1 and 2, who submitted that there was no case of contributory negligence. Rather, the Tribunal has categorically held that the accident was an outcome of rash and negligent driving by the owner-driver of the offending motorcycle bearing No.U.P.41W0385, which was insured by the appellant. In such circumstances, it was the Insurance Company that was required to indemnify the award. It was further submitted that, even if the deceased did not possess a driving licence, it would have no impact on the award for the reason that the accident was not caused by him. Also, if any claim had been made from the insurer of the vehicle being driven by the deceased, only then could such an objection have been raised. It is not open for the appellant to contest the aforesaid plea; hence, the appeal deserves to be dismissed. 5. The Court has heard learned counsel for the parties and also perused the material on record. 6. As the facts indicate, on 19.06.2014 at around 5 p.m. in the evening, the offending motorcycle bearing No.UP41W0385 was being driven rashly and negligently and the said motorcycle came and dashed against the deceased. In the said accident, the deceased suffered injuries and also died as a consequence of the said accident. A claim petition bearing No.302 of 2014 came to be filed before the MACT, Barabanki, which was contested by the defendants in the claim petition. A denial was made regarding the negligence of the offending motorcycle, coupled with the fact that the deceased did not possess a valid licence and the Insurance Company also contended that unless the offending vehicle was being driven as per policy conditions, they cannot be made to indemnify the award. 7. Upon exchange of pleadings, the Tribunal framed four issues. 8. Considering the evidence, it recorded a finding that the accident was on account of rash and negligent driving of the offending motorcycle bearing No.UP 41W0385. It also found that the said motorcycle was duly insured and its driver had a licence. It then went on to compute the compensation and awarded a sum of Rs.3,35,500/- along with 7 % interest per annum by means of the award dated 09.10.2015, which is under challenge before this Court. 9. Having considered the aforesaid submissions, apparently, the ground raised by the appellant relating to contributory negligence has no legs to stand. This Court finds that, as far as the driver-owner of the offending motorcycle bearing No.UP41W0385 is concerned, he did not contest the claim petition, nor did he enter into the witness box to lead any evidence. A plea of contributory negligence has to be proved by the party who raises such a plea. In the instant case, the plea raised was primarily by the Insurance Company, who were the insurer of the offending motorcycle bearing No. UP41W0385. No attempt was made to examine the offending motorcyclist, though he could have been the best witness, also an eyewitness, who could have deposed as to whether there was a case of contributory negligence and, if so, in what manner the deceased contributed to the said accident. In absence of any evidence whatsoever, the only version available before the Tribunal was that of the claimants. It was clearly stated by the claimants and their witnesses that the accident occurred on account of rash and negligent driving of the respondent No.3 herein. That being so, there was no material to come to any other conclusion and for the said reason, it cannot be said that the Tribunal did not appreciate the evidence on record or the plea of contributory negligence was not correctly appreciated by the Tribunal. Thus, for the said reason, the first submission of the learned counsel for the appellant is turned down. 10. Coming to the second ground as urged by the counsel for the appellant, it is also well settled that non-possession of a driving licence by the deceased, in itself, cannot be taken against him unless it is shown that he himself contributed to the accident. Once a finding had been recorded that it was not a case of contributory negligence and the negligence was squarely attributable to the offending motorcycle, in such circumstances, possessing or not possessing a driving licence by the deceased pales into insignificance. For the said reasons, the second submission of the counsel for the appellant is also turned down. 11. The Court has considered the material on record and does not find that there is any patent illegality which may persuade this Court to interfere. Accordingly, the appeal is without merit and is accordingly dismissed. No order as to costs. The award dated 09.10.2015 passed in Claim Petition No.0000302/2014 is affirmed. 12. Any amount deposited before this Court shall be remitted to the Tribunal to be released in favour of the claimants as per the award. Any outstanding sum shall also be paid by the appellant to the claimants-respondents within a period of sixty days from today with updated interest. (Jaspreet Singh, J.) Order Date :- 31.7.2025 Shubhankar Digitally signed by :- SHUBHANKAR THAKUR High Court of Judicature at Allahabad, Lucknow Bench