JUDGMENT & ORDER : This is an appeal under Section 173(1) of the Motor Vehicles Act, 1988, against the judgment and award dated 29.07.2016 passed by the learned Motor Accident Claims Tribunal, Dharmanagar, North Tripura wherein and whereunder the learned Tribunal has awarded Rs.16,60,000/- as compensation. 2. Heard Ms. R. Purkayastha, learned counsel appearing on behalf of the appellant-Insurance Company as well as Mr. C.S. Sinha, learned counsel appearing for the respondents. 3. The solitary question as raised by Ms. Purakayastha, learned counsel for the appellant-Insurance Company is that as to whether the accident occurred due to the contributory negligence of the deceased or the driver/rider of the motor bike. In order to examine the merit of the contention as raised on behalf of the appellant-Insurance Co., it is necessary for this Court to first and foremost examine, (a) What is negligent driving? and (b) Whether it can be gathered from the attendant circumstances? 4. Rash and negligent driving has to be examined in light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to 'rash and negligent driving' within the meaning of the language of Section 279 IPC. That is why the legislature in its wisdom has used the words 'manner so rash or negligent as to endanger human life'. The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated under Section 279 IPC is attracted. 5. 'Negligence' means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Once these ingredients are satisfied, the penalty contemplated under Section 279 IPC is attracted. 5. 'Negligence' means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence. 6. The Court has to adopt another parameter, i.e., 'reasonable care' in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others. 7. The other principle that may be pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes - one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. 8. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. 8. What constitutes negligence has been analysed in Halsbury's Laws of England (4th Edn.), Vol. 34, Para 1 (p. 3), as follows : “1. General principles of the law of negligence.-Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger; the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent, although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two.” 9. Now, in the backdrop of the above noted principles, I may take note of the facts of the present case. Now, in the backdrop of the above noted principles, I may take note of the facts of the present case. Smt. Sephalika Sinha, being the mother of the deceased, filed the claim application stating that her son Pradip Sinha @ Ajib Sinha, on 24.07.2012 at about 2 p.m., while was proceeding towards the motor garage at Durgapur, i.e. the workplace of the deceased, sitting on the backside of the motor bike (Honda Stunner CBF motor cycle) which was driven by one Sri Souvik Nath and reached near Sarala Petrol Pump at Rajbari on Dharmanagar-Bagbasa road, one Oil Tanker of registration No. TR02 1822 came from the opposite direction at a high speed dashed the motor cycle for which the son of the claimant fell down on the road and sustained grievous injuries. He was rushed to the Dharmanagar Hospital where he succumbed to his injuries. On information, Officer-in-Charge, Dharmanagar Police Station registered DMN PS Case No.108/2012 under Sections 279/304(A) IPC and after investigation the IO submitted charge-sheet against the driver of the Oil Tanker bearing registration no. TR02 1822. 10. It is also stated in the claim application that the deceased Pradip Sinha @ Ajib Sinha was aged about 24 years 8 months 12 days, according to his date of birth, i.e. 26.10.1987. The deceased was a motor mechanic by profession and his monthly salary was Rs.10,000/- and he used to spend the amount for maintenance of his family members. Thus, the claimant had claimed Rs.15,71,000/- as compensation. 11. The Driver of the offending vehicle by filing written objection appeared as OP No.1 and denied the factum of the accident. The owner of the Oil Tanker bearing No.TR02 1822 also denied the fact of the said incident and the statements made in the claim application by filing written statement. 12. The Insurance Company, appellant herein, being the Opposite Party No.3 in the proceedings before the learned Tribunal also had contested the suit and denied the statements made in the claim application by filing written objection. In the written objection filed by the appellant-Insurance Company, they have stated that the claimant, being the mother, was not entitled to get any compensation for the death of her son because the deceased was the pillion rider and, as such, he was a gratuitous rider. No other defense was taken by the Insurance Company during the proceedings before the learned Motor Accident Claims Tribunal. No other defense was taken by the Insurance Company during the proceedings before the learned Motor Accident Claims Tribunal. 13. During the course of proceedings the Registration Certificate, Tax token, Certificate of Fitness, Pollution Certificate, Certificate of Insurance, Authorization Certificate of National Permit (Goods) and the Driving License of the driver of the said Oil Tanker were exhibited by the parties. 14. The claimant Smt. Shephalika Sinha, submitted examination-in-chief and also was cross-examined as PW 1. In support of her claim application, she had produced two witnesses, PW2 and PW3, namely, Safar Ali and Narayan Singha, respectively. 15. The learned Tribunal on consideration of the evidence on all aspects of the suit came to the conclusion that the accident occurred due to the rash and negligent driving of the driver of the Oil Tanker bearing No. TR02 1822 and a sum of Rs.16,60,000/- was awarded in favour of the claimant. The appellant did not come forward to adduce any evidence to prove if there was any negligence on the part of the driver of the motor bike. 16. Ms. R. Purakayastha, learned counsel appearing for the appellant-Insurance Co. submits that the evidence of PW2 clearly shows that it was a case of contributory negligence of the deceased. Ms. Purkayastha, learned counsel has strenuously argued that PW2 in his cross-examination has stated that it was the motor cycle which dashed the Oil Tanker. 17. The submission of learned counsel leads this Court to give its anxious thought to the pleadings of the appellant made in their written objection. I find no pleadings in this regard, and even there was no words like “contributory negligence”. (Underlined for emphasis) 18. I have perused the examination-in-chief as well as the cross-examination of PW2. In his examination, PW 2 Md. Safar Ali has stated that when the motor bike had reached near the Sarala Petrol Pump at Rajbari on Dharmanagar-Bagbasa road, an Oil Tanker bearing registration No. TR02 1822 which was coming from the opposite direction, i.e. from the side of rail-gate with high and excessive speed vehemently dashed their motor cycle for which Pradip Sinha @ Ajib Sinha fell down on the road and sustained grievous injuries. At para 4 of his examination-in-chief, the said eye witness has very specifically asserted that the accident took place due to rash and negligent act and driving of the vehicle bearing No. TR02 1822 (Oil Tanker). 19. At para 4 of his examination-in-chief, the said eye witness has very specifically asserted that the accident took place due to rash and negligent act and driving of the vehicle bearing No. TR02 1822 (Oil Tanker). 19. In his cross-examination, he has stated that he has no knowledge whether Souvik Nath had any driving license or not. He has further stated that the incident took place when the bike dashed in the front side of the Oil Tanker and the deceased fell out. This statement of PW2 led the appellant-Insurance Company to file the instant appeal. 20. I have scanned meticulously and scrupulously the evidence on record and the argument put forth by learned counsel appearing for the appellant-Insurance Company. She has drawn my attention to the statement made by Md. Safar Ali, PW2 wherein he has stated that: “The incident took place when the bike dashed in the front side of the Oil Tanker and the deceased fell out in the right side…” 21. According to me, the evidence has to be read and understood in its entirety. This is not the principle of appreciation of evidence that the courts or Tribunal is just to pick up a sentence in isolation and discard the other evidences on record. More so, just after making such statement, PW2 was very quick to answer to a suggestion that :- “It is not a fact that accident took place due to rash and negligent driving of the bike by Sauvik Nath.” With this statement he has confirmed that the accident took place due to the rash and negligent driving of the driver of the Oil Tanker and according to me it is sufficient to hold that motor bike was going on its own way, and enough to hold that the oil tanker dashed the motor bike. 22. Further, in spite of my minute scrutiny of the award, I have not been able to even find a mention of the words “contributory negligence” in the award passed by the Tribunal as said words are also missing in the written statement filed by the appellant Insurance Company. I am afraid to return the finding of the Tribunal only on the basis of a stray statement of PW2 in his cross-examination as the learned counsel has urged before this Court. 23. I am afraid to return the finding of the Tribunal only on the basis of a stray statement of PW2 in his cross-examination as the learned counsel has urged before this Court. 23. In the present case, it is an admitted fact that a bus was standing at the right side of the road and it was very natural that it would cover some portion of the road. It was also natural that the oil tanker would move towards little bit away from its original right track to cover up the portion of the road occupied by the standing bus, and even if the bike was on the right track, then also, it was very natural to dash and collide with the front side of the oil tanker, what exactly happened in the present case. In that situation, it was not unnatural for a witness facing cross-examination to tell that the bike dashed at the front side of the oil tanker. 24. Under such circumstances, in my opinion, the doctrine of res ipsa loquitur may be applied. Applying this doctrine, it is clear that it was because of the negligence on the part of the Oil Tanker that the accident took place. After all, the hit given by the Oil Tanker was so powerful that the son of the claimant though he was sitting at the back of the driver of the bike, succumbed to injuries immediately after he was taken to the nearby hospital. 25. The question of contributory negligence on the part of the driver in case of collision was considered by the Apex Court in Pramodkumar Rasikbhai Jhaveri Vs. Karmasey Kunvargi Tak and Ors., reported in 2002 (6) SCC 455 . That was a case of collusion in between a Car and a truck. It was observed in Para 8 :- "The question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as 'negligence'. Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence", it does not mean breach of any duty. Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence", it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an "author of his own wrong." 26. I may gainfully refer a decision in Usha Rajkhowa & Ors. V/s. Paramount Industries & Ors., reported in (2009) 14 SCC 71 where the Apex Court had the opportunity to deal with similar and identical issues. “8. In spite of our minute scrutiny of the award, we have not been able to even find a mention of words "contributory negligence" in the award passed by the Tribunal. There is, in fact, no finding given by the Tribunal as regards the contributory negligence. The subject is discussed in paragraphs 10 and 11, where we do not find any specific finding to the effect that Maruti Car was guilty of the contributory negligence. It is only because the amount of compensation is restricted to the 50% of the assessed amount that we have to infer that the Tribunal had given a finding of contributory negligence. Even at the cost of repetition, we may say that the words "contributory negligence" nowhere appear in the award passed by the Tribunal. There is only one stray statement in the award, concerning the evidence of PW-3 Madhuriya Rajkhowa to the effect that he failed to state which of the vehicles was actually at fault. On this backdrop, when we see the impugned judgment, very interestingly, the judgment mentions in paragraph 9:- "In the present case at hand, the learned Tribunal has held that the accident took place due to contributory negligence of the driver of the truck and the Maruti Car." We are afraid, such sentence is not to be found in the award of the Tribunal. We do not know, as to where has this finding been found by the High Court in the award. The High Court then referred to the evidence of PW-3 and referred to the same sentence by PW-3. It is on the basis of this stray sentence that the High Court chose to confirm the finding of the Tribunal (which is not to be found) regarding the contributory negligence. Such appreciation is clearly erroneous.” 27. The High Court then referred to the evidence of PW-3 and referred to the same sentence by PW-3. It is on the basis of this stray sentence that the High Court chose to confirm the finding of the Tribunal (which is not to be found) regarding the contributory negligence. Such appreciation is clearly erroneous.” 27. In the case of Mohd. Aynuddin vs. State of A.P., (2000) 7 SCC 72 the Apex Court has also stated the principle : “8. The principle of res ipsa loquitur is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrongdoer.” In my opinion, the above principle can also be applied in the facts of the present case. 28. In the charge-sheet submitted by the police before the Tribunal it has come out that the driver of the Oil Tanker was responsible behind the cause of the accident and Mr. Pradip Sinha @ Ajib Sinha, now deceased, died due to the rash and negligent driving of the driver of the vehicle bearing No. TR02 1822. Hence, I repel the submissions of Ms. Purkayastha, learned counsel appearing for the appellant-Insurance Company. 29. Ms. Purkayastha, learned counsel has submitted that she has no other ground in this appeal apart from the ground of contributory negligence, which according to her, the Tribunal ought to have been considered. On the basis of her submissions, this Court is not inclined to examine the veracity of other aspects of the award. 30. Ms. Purkayastha, learned counsel for the appellant has further submitted that the claimant intentionally did not implead the driver of the motor bike and which was collusive. She found fault due to the non-impleading of the owner of the motor bike as well as the driver of the motor bike. According to me, the option is left with the claimant-respondent against whom he/she wants to file claim application, and particularly, when the claimant is not the eye witness to the incident. She found fault due to the non-impleading of the owner of the motor bike as well as the driver of the motor bike. According to me, the option is left with the claimant-respondent against whom he/she wants to file claim application, and particularly, when the claimant is not the eye witness to the incident. Further, the poor helpless mother who has lost her son had filed the claim application on the basis of information gathered from others. In the instant case, the claimant was not the eye witness. She has narrated the facts in the claim application on the basis of information passed on to her by the police and the person who witnessed the accident. On consideration of the statement which she made in her claim application, was well corroborated by PW 2, who was the eye-witness. Police also filed charge-sheet against the driver of vehicle no. TR02 1822. According to me, the claimant cannot be blamed in any manner for non-impleading the owner and rider of the motor cycle. In view of this, I find no force in the statement of Ms. Purkayastha, learned counsel for the appellant-Insurance Company. 31. Even if, for argument sake had the rider/driver or owner of the motor bike was made party to the suit, then whether it would change the decision of the Tribunal in holding the oil tanker responsible behind the accident resulting in the death of the son of the claimant? Let me scrupulously examine and answer this aspect of the dispute. 32. Evidently, the deceased was not the driver of the motor cycle. He was sitting at the back as pillion rider. There was no question of contributory negligence on the part of the deceased. However, for argument sake, there might have been contributory negligence on the part of the driver of the motor bike. Then, it can at best be said for the sake of argument that the driver of the motor bike is a third party, i.e. neither the deceased nor the driver of the offending vehicle, whose act or omission might have played a part in causing the death of the son of the claimant. I may gainfully quote : “The contributory negligence of a third party is no excuse for the negligence act of the defendant.” Thomas E. Holland, The Elements of jurisprudence 154 (13th Ed. I may gainfully quote : “The contributory negligence of a third party is no excuse for the negligence act of the defendant.” Thomas E. Holland, The Elements of jurisprudence 154 (13th Ed. 1924) Following this principle, even there was no contributory negligence on the part of the rider of the motor bike, the same cannot be an excuse to absolve the driver of the offending vehicle (Oil Tanker) from the negligent act leading to the death of the son of the claimant-respondents. 33. Hence, from the attending circumstances as discussed above, I have no hesitation to hold that there was no contributory negligence either from the deceased or the driver/rider of the bike but it was the driver of the oil tanker who was negligent and caused the accident leading to the death of the son of the claimant-respondent. 34. This Court may infer that to prove the contributory negligence, there must be cogent evidence. In the instant case, there is no specific evidence to prove that the accident has taken place due to rash and negligent driving of the driver/rider of the motor bike. 35. In the above conspectus, I find no reason to interfere with the judgment and award passed by the learned Motor Accident Claims Tribunal. Accordingly, the appeal is dismissed being devoid of merit. 36. I am constrained to observe that the appellant Insurance Company has filed this appeal only on the basis of a stray statement made by PW2 as discussed above and that also without having any pleadings on contributory negligence and dragged the poor helpless mother into unnecessary litigation. As such, a cost of Rs.10,000/- is imposed upon the appellant-Insurance Company to be paid to the claimant which would render justice to the claimant-respondent. 37. It is further ordered that the appellant Insurance Company shall pay the entire amount of the award, including the cost, within a period of 2(two) months from the date of this judgment.