JUDGMENT 1. - This appeal under Section 173 of the Motor Vehicles Act, 1988 ('the Act') has been preferred by the Insurance Company aggrieved by the judgment and award dated 09-07-2009 passed by the Motor Accident Claims Tribunal-cum-Additional District Judge, Nagaur ('the Tribunal') ' whereby, a compensation of Rs. 5,04,500/- along with interest @ 6% per annum from the date of application has been awarded. 2. The facts in brief are that on 23-03- 2008 one Sampat Ram along with his cousin brother Rameshwar and his (Rameshwar's wife Suman were riding on a Motor Cycle No. RJ21-SS-1491 and at around 3:00 PM when they reached Bhadana Fhata on Deh to Nagaur Highway No. 65, a Tata Sumo (sports utility vehicle known by its brand name) having registration No. RJ21-T-0731, which was being driven rashly and negligently, struck the motor cycle and seriously injured Sampat Ram, who died on way to the hospital. Rameshwar and his wife Suman also suffered injuries. 3. An application for compensation was filed by the wife, children and parents of deceased Sampat Ram claiming a sum of Rs. 31,40,000/- as compensation for the untimely death of Sampat Ram. 4. A reply to the said application was filed by the owner and driver of the vehicle and the averments made in the application were denied. 5. The appellant Insurance Company filed its rely and stated that by driving the motor cycle with three persons, deceased Sampat Ram violated provisions of the Act, for which, he himself was responsible and the Insurance Company is not liable for any compensation. 6. After issues were framed and evidence was led by the claimants and the Insurance Company, the Tribunal found that the Tata Sumo was being driven rashly and negligently by the driver, which resulted in the accident and untimely death of Sampat Ram and awarded the compensation as noted hereinbefore. 7. Learned counsel for the appellant raised contention that the Tribunal has committed gross error in not considering the contributory negligence on the part of the deceased, who was driving the motor cycle by carrying two pillion riders. It was submitted that the Tribunal has totally ignored this aspect of the matter and committed gross error in holding that the driver of Tata Sumo was solely responsible for the accident. 8. It was submitted that the Tribunal has totally ignored this aspect of the matter and committed gross error in holding that the driver of Tata Sumo was solely responsible for the accident. 8. Learned counsel further submitted that it has come on record that not only the deceased was driving the motor cycle with two pillion riders, but they were also carrying a large suitcase and other goods with them, which clearly goes to prove the contributory negligence of the deceased. 9. In this connection reliance was placed on provisions of Section 128 of the Act, which reads as under : "Sec. 128. Safety measures for drivers and pillion riders.- (1) No driver of a two wheeled motor cycle shall carry more than one person in addition to himself on the motor cycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the motor cycle behind the driver's seat with appropriate safety measures. (2) In addition to the safety measures mentioned in sub-Section (1), the Central Government may, prescribe other safety measures for the drivers of two-wheeled motor cycles and pillion riders thereon." 10. Reliance was also placed on the judgment of this Court in Yuvraj v. Shri Prakash Chandra & Ors., S. B. Civil Misc. Appeal No. 804 of 1996 decided on 04-01-2008 in sup- port of the contention that as the deceased has broken the law, even if, negligence can- not be attributed to him, but certain amount of rashness is certainly attributable to him. 11. On the other hand, learned counsel for the claimants submitted that the Tribunal has rightly awarded compensation and has not committed any error warranting any interference. " It was submitted that the Tribunal has rightly appreciated the oral and documentary evidence placed on record and fastened the negligence on the part of the Tata Sumo driver and the said finding does not require any interference. It was further submitted that in the absence of any evidence on the side of the appellant that three persons travelling on the motor cycle has contributed to the accident, no negligence could be fastened on the rider of the motor cycle. 12. I have considered the submissions made by the counsel appearing for the parties and perused the impugned award as well as the material evidence placed on record. 13. 12. I have considered the submissions made by the counsel appearing for the parties and perused the impugned award as well as the material evidence placed on record. 13. It is an admitted fact that the accident had occurred on 23-03-2008 when the deceased was riding motor cycle with two persons Rameshwar and Suman as pillion riders and was proceeding from Deh to Nagaur National Highway 65 and when he reached near Bhadana Fhata, the driver of Tata Sumo drove the vehicle very fast in a rash and negligent manner and hit the motor cycle when the said motor cycle was moving on its correct side of the road and due to the said impact the deceased sustained fatal injuries and the pillion riders also got injured. 14. The finding of the Tribunal in this regard based on Exhibit-3, which is the site plan prepared by the police, clearly indicates that the Tata Sumo driver struck the motor cycle by going on the extreme right and dragged him for about 20 ft. A bare look at the said site plan leaves no manner of doubt that the accident occurred on account of the negligence on the part of the driver of Tata Sumo, which resulted in the accident and in absence of any evidence to the contrary, it was rightly held by the Tribunal that accident was caused due to rash and negligent driving of the driver of Tata Sumo. 15. So far as the submissions of learned counsel for the appellant that the deceased has contributed to the accident is concerned, merely because there is violation of the provisions of the Act or Rules or the Policy conditions, it is not automatic that in every case the principle of contributory negligence is to be applied mechanically unless there is evidence to prove that the accident also took place because of such act i.e. taking/travelling more persons in a motor cycle, which resulted in the accident. If the driver/owner or Insurance Company is able to prove that it is because of the addition of one more person the accident occurred, the position would be different, otherwise, the Insurance Company/owner would be liable to make good the loss/compensation. 16. If the driver/owner or Insurance Company is able to prove that it is because of the addition of one more person the accident occurred, the position would be different, otherwise, the Insurance Company/owner would be liable to make good the loss/compensation. 16. As noticed hereinbefore, it is the Tata Sumo driver, who had gone to the other side of the road and hit the motor cycle causing accident and there is no evidence to show that the accident occurred because of travelling of three persons in the motor cycle. 17. It is trite law that negligence of the plaintiff, which can be described as contributory negligence, must have casual connection with the damage suffered by him. 18. A Division Bench of this Court in National Insurance Co. Ltd. & Ors. v. Kastoori Devi & Ors., 1998 ACJ 8 held thus "9. The next question which calls for consideration is as to what was the negligence of Arvind Kumar, who was driving the motor cycle and how the liability in such cases can be apportioned. It is no doubt correct that Arvind Kumar should not have taken 4 per- sons including himself on the motor cycle and taking of so many persons on motor cycle was not permissible under the Motor Vehicles Rules but this fact alone cannot make liable the driver to cause accident of the motor cycle. It would be a different question if in fact the Court may arrive at the conclusion that a person driving the motor cycle on account of carrying more persons, in fact lost the balance and thus was himself negligent in causing an accident. Merely because some more persons were carried on a motor cycle which did not contribute nor was a factor in causing an accident then such conduct alone cannot be considered as an act of contributory negligence on the part of the driver of the motor cycle." 19. This Court in New India Assurance Co. Ltd. v. Avinash & Ors., 1988 ACJ 322 held thus "5. It is a settled law that when a person is injured without any negligence on his part but as a result of the negligence on the part of the other persons or as a result of the combined negligence of two other persons, it is not a case of contributory negligence. It is a settled law that when a person is injured without any negligence on his part but as a result of the negligence on the part of the other persons or as a result of the combined negligence of two other persons, it is not a case of contributory negligence. The term `contributory negligence' squarely and solely applies to the conduct of the claimant alone. If the claimant is guilty of an act or omission which has materially contributed to the accident and resulted in injury and damages, the matter comes within the concept of contributory negligence." 20. Approving the judgment reported at 1988 ACJ 322 , the interpretation of 'contributory negligence' distinct from 'negligence' has been clearly indicated by Hon'ble Supreme Court in Sudhir Kumar Rana v. Surinder Singh, (2008) 12 SCC 436 : AIR 2008 SC 2405 , wherein, the claimant driving two wheeler met with an accident and suffered injuries, the Tribunal found claim- ant not possessing any driving licence and consequently contributed to the accident. The said finding was affirmed by the High Court and in appeal Hon'ble Supreme Court held that if a person drives vehicle without a licence, he commits an offence and that by itself may not lead to a finding of negligence as regards accident and that there was no finding that the claimant was driving two wheeler rashly and negligently. The Hon'ble Supreme Court held that only for not possessing the licence, the claimant would not be guilty of contributory negligence. It was held thus : "6. A contributory negligence may be defined as negligence in not avoiding the consequences arising from the negligence of some other person, when means and opportunity are afforded to do so. The question of contributory negligence would arise only when both parties are found to be negligent. 7. The question is, negligence for what? If the complainant must be guilty of an act or omission which materially contributed to the accident and resulted in injury and damage, the concept of contributory negligence would apply. (See New India Assurance Co. Ltd. v. Avinash, 1988 ACJ 322 : 8. In T.O. Anthony v. Karvarnan, it was held : SCC pp. 750-51, Paras 6-7, : AIR 2008 SC (Supp) 1646 : "6. "Composite negligence" refers to the negligence on the part of two or more persons. (See New India Assurance Co. Ltd. v. Avinash, 1988 ACJ 322 : 8. In T.O. Anthony v. Karvarnan, it was held : SCC pp. 750-51, Paras 6-7, : AIR 2008 SC (Supp) 1646 : "6. "Composite negligence" refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to be injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the Court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence. 7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is, his contributory negligence. Therefore where the injured is himself partly liable, the principles of `composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error." 9. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error." 9. 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 who was driving 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." 21. It is thus clear from what has been held by the Hon'ble Supreme Court that negligence ordinarily means breach of a legal duty to take care, whereas contributory negligence means the failure by a person to use reasonable care for the safety of either of himself or his property so that he himself or his property, becomes blameworthy in part as author of his own wrong. 22. Provisions of Section 128 as noticed above are safety measures for the driver and pillion rider and breach of such safety measures which may amount to negligence on part of the driver of the motor cycle, but can- not be termed as contributory negligence, unless the immediate cause of the accident or damage suffered by the driver or pillion rider would be on account of violation of the said provision. 23. Recently this Court in Ram Ratan v. Shobha & Ors., S.B. Civil Misc. Appeal No. 665 of 2009 decided on 01-04-2013 held that merely because a driver had consumed liquor and while going on correct side of the road is struck by a offending vehicle, which is being driven rashly and negligently, merely because the suffering driver had consume liquor, it cannot ipso facto said that he had contributed to the said accident. 24. 24. So far as the judgment of this Court in Yuvraj (supra) is concerned, in the said judgment also the Court observed as under : "Learned counsel for the appellant has relied upon the case of National Insurance Company & Ors. v. Kastori Devi & Ors., 1988 ACJ 8 , in order to buttress his contention that merely because three riders are riding on a motor cycle, no presumption can be drawn that they have contributed to the occurrence of the accident. Needless to say that there is no such presumption in law, but each case has to be decided on the peculiar facts and circumstances of the case." 25. The Court further on facts upheld the finding of the Tribunal, which held the driver of the motor cycle guilty of 25% contributory negligence, therefore, on principles the said judgment also does not support the case of the appellant. 26. In view of the above, I am of the considered opinion that as the accident has been caused not on account of violation of Section 128 of the Act, the deceased would not be guilty of contributory negligence as the said violation has no casual connection with the damage caused to the deceased or pillion riders, which could be termed as contributory negligence on his part. No other point was raised. 27. I view of what has been discussed above, e appeal has no substance and is, there fore, dismissed. No costs.Appeal Dismissed. *******