ORDER 1. Both the appeals are arising out of the award dated 19.5.2007 passed by the claims tribunal in MACC No.28/2006. 2. MA No.2612/2007 has been filed by the insurance company challenging the award on the question of fastening the liability of payment of compensation upon it. The other appeal i.e. MA No.2707/2007 has been filed by the claimants for enhancement of compensation and against the part holding 30% contributory negligence of the deceased. 3. The relevant facts for the purpose of adjudication of the present cases are that on 8.1.2006 the deceased Hemant Singh was going along with friends Shankar Singh and Vishnu from Dalauda to Mandsaur by a motorcycle. The motorcycle was being ridden by Shankar Singh and Hemant Singh and Vishnu were sitting as pillion riders, when they reached near Soyabean Choupal Mhow-Neemuch Road, a bus bearing registration No.MP43-F-0004 came driven by its driver in a rash and negligent manner and dashed into the motorcycle of Shankar Singh because of this accident all three persons sustained grievous injuries. Hemant Singh was referred from Mandsaur hospital to Ahemadabad for treatment where he died during treatment. 4. The claimants filed claim petition under section 166 of the Motor Vehicles Act claiming compensation for the death of Hemant Singh. The claims tribunal while recording findings about the accident concluded that there was 30% contributory negligence on the part of the deceased and 70% negligence was on the part of the bus driver. The basis of contributory negligence was recorded by the claims tribunal in para Nos.10, 11, 12, and 13. But a close scrutiny of these paras would reveal that the contributory negligence of the deceased as well as other two persons on the motorcycle was attributed by the claims tribunal only for the fact that three persons were sitting on the motorcycle which was in breach of provision of section 128 of the Motor Vehicles Act, thus, they were found to be negligent. As regards the negligence of the bus it has come in para 7 that the bus was running very fast. It has also come on record that the bus was trying to overtake a truck. 5. The claims tribunal in view of the above findings of the contributory negligence while assessing total compensation to the tune of Rs.11,81,566/- has awarded only an amount of Rs.8,27,095/- to the claimants as rest 30% was deducted for contributory negligence. It has also come on record that the bus was trying to overtake a truck. 5. The claims tribunal in view of the above findings of the contributory negligence while assessing total compensation to the tune of Rs.11,81,566/- has awarded only an amount of Rs.8,27,095/- to the claimants as rest 30% was deducted for contributory negligence. Apart from this, while considering the question No.3 regarding validity of driving license of the driver of the offending vehicle and consequential liability of the insurance company the claims tribunal has recorded in para 24 that it is apparent from Ex.D-1 that the period of driving license was from 1.1.1998 to 31.12.2000. By referring to the statement of Ravindra Virbal NAW-1, who was Sahaayak Grade-III at RTO, Mandsaur as well as NAW-3 Sajjan Sharma who was the accountant in the said office the tribunal recorded that the license of the driver of the bus was not renewed from 31.12.2000 to 17.4.2006. The claims tribunal by ignoring absence of license, considered a different aspect i.e. the disqualification of the driver in as much as wether he was disqualified by competent authority or not, while doing so it completely overlooked the fact that it has clearly come on record that the license of the driver was renewed on 17.4.2006 i.e. after more than 4 months of the date of accident. The claims tribunal considered in para 27 that the driver was not disqualified by the RTO in terms of section 19 of the Motor Vehicles Act, 1988. Thus, the claims tribunal observed that even if at the time of accident the driver was not having driving license still the insurance company is liable to pay the compensation. 6. As regards the income, the claims tribunal considered the income of the deceased Hemant Singh in para 13, 14 and 15 and after discussing the evidence in further paragraphs i.e. para Nos.17, 18, 21 and 22 concluded the income of the deceased at Rs.6000/- per month. 7. The learned counsel for the insurance company submits that the claims tribunal while fastening liability for payment of compensation upon the insurance company in terms of para 24 to 27 has erred in law. 7. The learned counsel for the insurance company submits that the claims tribunal while fastening liability for payment of compensation upon the insurance company in terms of para 24 to 27 has erred in law. He submits,by referring to the provisions of section 15 of the Motor Vehicles Act, that if the license is renewed within the period of 30 days from the date of its expiry then it will be treated as continued for the interregnum period of expiry and renewal. But, beyond 30 days it will be treated as renewed on the date when the order of renewal was passed. He, thus, submits that the claims tribunal has erred in not considering the question of absence of license and still erred in considering the question of disqualification because that was not the question relevant for the purpose of the present case. He submits that it was a case of absence of license on the date of accident. In support of his submissions, he places reliance on the judgment of the Hon’ble spex Court rendered in the case of National Insurance Company Ltd. v. Vidhyadhar Mahariwala and others, 2008 ACJ 2860 , New India Assurance C. Ltd. v. Suresh Chandra Aggarwal, 2009 ACJ 2697 as well as Beliram v. Rajinder Kumar and another, 2022 (15) SCC 572 . 8. He submits that in view of the clear law laid down by the Hon’ble apex Court, it is the position of the law that if driving license is not renewed within 30 days, it has to be considered that the driver neither had an effective driving license nor can he be said to be duly licensed thus qualified to drive a vehicle. 9. He further submits that in view of the law as laid down by the Hon’ble apex Court, it was the duty of the owner to check that the driver has a valid driving license and in case of expiry he should have given instruction to driver to get his driving license renewed. As such he submits that there was a clear breach of policy on the part of the owner and driver of the vehicle, thus, insurance company is not liable to pay compensation and claims tribunal has erred in directing for the same. 10. As such he submits that there was a clear breach of policy on the part of the owner and driver of the vehicle, thus, insurance company is not liable to pay compensation and claims tribunal has erred in directing for the same. 10. Learned counsel for the claimants, on the other hand, supported the findings of the award by placing reliance on the case laws of this Court rendered in the cases of :-- (i) Oriental Insurance v. Hira Tripathi, 2001 (1) MPHT 221 ( i i ) United India Insurance v. Sher Ali, 2000 (1) ACJ 507 (iii) Suresh Mohan Chopra v. Lekhi Prabhu Dayal, 1990 AIR (SC) 1979 (iv) National Insurance v. Tulna Devi, 2009 ACJ 581 (v) New India v. Pritilata, 2001 MPHT 461 and (vi) Kalyan Singh v. Sadarani, 2001 ACJ 1758 . 11. As regards the contributory negligence, the counsel for the claimants submits, by referring the findings recorded by the claims tribunal in para 11 to 14, that a bare perusal of findings would show that there was no material whatsoever except saying that three persons were sitting on the motorcycle which was in breach of provision of section 128 of the Motor Vehicles Act. He submits that violation of section 128 per se would not create a presumption of contributory negligence on the part of rider of motorcycle. He submits that in absence of any corroborative material demonstrating negligence of the person riding/sitting on the motorcycle the finding of the claims tribunal is not sustainable in law. In support of his submissions he placed reliance on the decisions of the Hon’ble Supreme Court in the cases of Devisingh v. Vikram Singh 2008 ACJ 393 and Mohammad Siddique v. National Insurance, AIR 2020 SC 520 . 12. Learned counsel for the claimants further submits that the income tax returns were exhibited by the claimants for demonstrating the income of the deceased Hemant Singh at Ex.P-26 and Ex.P-35 but, the claims tribunal instead of taking income as per income tax return has assessed the income of the deceased at Rs.6000/- per month which is not in accordance with law. In support of his submissions in this regard he placed reliance upon decisions of the Hon’ble apex Court rendered in the case of Anjali and others v. Lokendra Rathod, 2023 AIR (SC) 44. In support of his submissions in this regard he placed reliance upon decisions of the Hon’ble apex Court rendered in the case of Anjali and others v. Lokendra Rathod, 2023 AIR (SC) 44. Thus, he prays for enhancement of compensation and for setting aside the part of the award assigning contributory negligence on the part of the deceased. 13. Learned counsel for the owner of the vehicle repeated the arguments of the counsel for the claimants with respect to liability of the insurance company for the payment of compensation. He placed reliance on the case laws as mentioned above and supports the contention of the claimants. 14. Heard the learned counsel for the parties and perused the record. 15. As far as the question regarding contributory negligence is concerned it is seen from the discussion made by the claims tribunal in para 10 to 13 that apart from the fact that the deceased was sitting on the motorcycle with two other persons, there was no other material at all so as to assign or demonstrate negligence of the persons sitting on the motorcycle. There is one more significant fact of the case that the deceased Hemant Singh for whose death the claim petition was filed was not riding the motorcycle but was sitting as pillion ride. The Hon’ble apex Court in the case of Devisingh (supra), has considered this aspect in detail and recorded its findings in para 14 as under :-- 14. “Accordingly, our answers to the questions referred to us are : (1) Violation of section 128 of the Act, per se, by a motorcyclist does not raise a presumption of contributory negligence on his part; (2) similarly, violation of section 128 of the Act per se does not amount to contributory negligence on the part of the pillion riders. (3) A pillion rider cannot put up a plea of composite negligence by the driver of the motor cycle, if the driver only violates section 128 of the Act.” 16. Further, the Hon’ble apex Court in the case of Mohammad Siddique (supra), has held in para 14 that in absence of any evidence to show that the wrongful act on the part of the deceased victim contributed either to the accident or to the nature of the injuries sustained by the victim, he could not have been held guilty of contributory negligence. The Hon’ble apex Court in para 13 has recorded specific findings regarding three persons sitting on motorcycle in following manner :-- “13. But the above reason, in our view, is flawed. The fact that the deceased was riding on a motor cycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the driver of a two wheeled motor cycle, not to carry more than one person on the motor cycle. section 194-C inserted by the Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motor cycle drivers and pillion riders. Therefore, the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could have been averted or the injuries sustained could have been of a lesser degree, if there had been no violation of the law by the victim. What could otherwise have resulted in a simple injury, might have resulted in a grievous injury or even death due to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the accident could have been averted or the impact could have been minimized, that the principle of contributory negligence could be invoked. It is not the case of the insurer that the accident itself occurred as a result of three persons riding on a motor cycle. It is not even the case of the insurer that the accident would have been averted, if three persons were not riding on the motor cycle. It is not the case of the insurer that the accident itself occurred as a result of three persons riding on a motor cycle. It is not even the case of the insurer that the accident would have been averted, if three persons were not riding on the motor cycle. The fact that the motor cycle was hit by the car from behind, is admitted. Interestingly, the finding recorded by the Tribunal that the deceased was wearing a helmet and that the deceased was knocked down after the car hit the motor cycle from behind, are all not assailed. Therefore, the finding of the High Court that 2 persons on the pillion of the motor cycle, could have added to the imbalance, is nothing but presumptuous and is not based either upon pleading or upon the evidence on record. Nothing was extracted from PW3 to the effect that 2 persons on the pillion added to the imbalance.” 17. In view of the above clear position of law the findings recorded by the claims tribunal in para 13 of the impugned award regarding 30% contributory negligence of the persons sitting on the motorcycle are hereby set aside. It is held that the driver of the offending bus was negligent, thus, it was 100% negligence on the part of driver of the bus who caused accident. 18. As regards the question of income, the claims tribunal has considered the income tax returns and other evidence on record. On bare perusal of the findings recorded by the claims tribunal as well as documents available on record it can be seen that the income of the decease was largely from agricultural income. In para 18 of the award the claims tribunal has recorded that the agricultural land was in the name of grand mother-in-law of the appellant No.1 i.e. grand mother of the deceased. The claims tribunal considered that the income of the said land would continue to be generated anyways although there will be involvement of some employee for supervision, thus, there will be additional expenditure. 19. As regards the selling of milk, the claims tribunal has disbelieved the same and in view of the evidence on record, the findings of the claims tribunal appears to be correct as there was no licence on record or even registration of the shop regarding the claim that he was operating shop for selling milk. 19. As regards the selling of milk, the claims tribunal has disbelieved the same and in view of the evidence on record, the findings of the claims tribunal appears to be correct as there was no licence on record or even registration of the shop regarding the claim that he was operating shop for selling milk. In this view of the matter, no infirmity is found in taking the income of the deceased at Rs.6000/- per month. As such, interference in the findings in this regard is declined. 20. As regards the question of liability of insurance company, the Hon’ble apex Court in the case of Vidhyadhar (supra), has held in para 8 and 11 as under :-- “8. In Swaran Singh’s case, 2004 ACJ 1 (SC). whereupon the respondent no.2 relied, it was held as follows : “(39) Thus, a person whose licence is ordinarily renewed in terms of the Motor Vehicles Act and the Rules framed thereunder, despite the fact that during the interregnum period, namely, when the accident took place and the date of expiry of the licence, he did not have a valid licence, he could during the prescribed period apply for renewal thereof and could obtain the same automatically without undergoing any further test or without having been declared unqualified therefor. Proviso appended to section 14 in unequivocal terms states that the licence remains valid for a period of thirty days from the day of its expiry. (40) Section 15 of the Act does not empower the authorities to reject an application for renewal only on the ground that there is a break in validity or tenure of the driving licence has lapsed, as in the meantime the provisions for disqualification of the driver contained in sections 19, 20, 21, 22, 23 and 24 will not be attracted, would indisputably confer a right upon the person to get his driving licence renewed. In that view of the matter, he cannot be said to be delicensed and the same shall remain valid for a period of thirty days after its expiry.” 11. In Ishwar Chandra’s case, 2007 ACJ 1067 (SC) the three decisions referred to by the High Court were considered and it was held that the insurance company would have no liability in the case of this nature. We are in agreement with the view. The appeal deserves to be allowed which we direct. In Ishwar Chandra’s case, 2007 ACJ 1067 (SC) the three decisions referred to by the High Court were considered and it was held that the insurance company would have no liability in the case of this nature. We are in agreement with the view. The appeal deserves to be allowed which we direct. The impugned order of the High Court is set aside. It is open to the claimant to recover the amount from respondent No.2.” 21. Further while considering the similar question in the case of Suresh Chandra Aggarwal (supra), the Hon’ble apex Court has held in para 16 and 17 as under :-- “16. In the instant case, as noted above, as per the certificate issued by the licensing authority, the driving licence of the deceased driver had expired on 25th October, 1991 i.e. four months prior to the date of accident on 29th February, 1992 and it was renewed with effect from 23rd March, 1992. It is not the case of the claimant that the driver had applied for renewal of the licence within 30 days of the date of its expiry. On the contrary, it is the specific case of the appellant that the driving licence was renewed only with effect from 23rd March, 1992. From a plain reading of section 15 of the Act, it is clear that if an application for renewal of licence is made within 30 days of the date of its expiry, the licence continues to be effective and valid without a break as the renewal dates back to the date of its expiry. Whereas, when an application for renewal is filed after more than 30 days after the date of its expiry, proviso to sub-section (1) of section 15 of the Act, gets attracted and the licence is renewed only with effect from the date of its renewal, meaning thereby that in the interregnum between the date of expiry of the licence and the date of its renewal, there is no effective licence in existence. The provision is clear and admits of no ambiguity. However, the stand of the claimant before the District and State Fora as also before us was that since the deceased driver was holding a valid licence and had not been disqualified from holding an effective licence, the stipulation in the afore-extracted condition was not infringed. In our view, the argument is stated to be rejected. However, the stand of the claimant before the District and State Fora as also before us was that since the deceased driver was holding a valid licence and had not been disqualified from holding an effective licence, the stipulation in the afore-extracted condition was not infringed. In our view, the argument is stated to be rejected. Admittedly, having failed to apply for renewal of the driving licence within 30 days from the date of its expiry in terms of section 15 of the Act, the licence could not be renewed with effect from the date of its expiry and therefore, between the period from 26th October, 1991 to 22nd March, 1992, the deceased driver had no valid and effective driving licence as contemplated under section 3 of the Act. We are convinced that during this period, he did not hold at all an effective driving licence, as required in the terms and conditions governing the policy on the date of accident i.e. 29th February, 1992. 17. As a matter of fact, in view of the clear mandate of section 3 of the Act, the deceased driver was not even permitted to drive the insured vehicle in a public place. Furthermore, the claimant not only committed breach of the terms of the policy, he also violated the provisions of section 5 of the Act by entrusting the vehicle to a person who did not hold a valid licence on the date of the accident. Although it was not pleaded by learned counsel for the appellant, but we fail to understand as to how the licence was and could be renewed w.e.f. 23rd March, 1992 after the death of the licence-holder on 29th February, 1992. In our opinion, therefore, the appellant was not liable to indemnify the claimant for the loss suffered by him in the accident of the insured vehicle.” 22. Recently, in the case of Beliram (supra), the Hon’ble apex Court after considering the earlier judgments in this regards concluded in para 19, 20 and 21 as under :-- “19. The last judgment is of the Himachal Pradesh High Court in National Insurance Co. Ltd. v. Hem Raj & Ors. 8 This was, once again, a case of an originally valid licence, which had expired, there was no question of a fake licence. The last judgment is of the Himachal Pradesh High Court in National Insurance Co. Ltd. v. Hem Raj & Ors. 8 This was, once again, a case of an originally valid licence, which had expired, there was no question of a fake licence. It was opined that the conclusions to be drawn from the observations of the judgment in the Swaran Singh case of this Court, were that the insurance company can defend an action on the 7 (2015) 111 ALR 275 (authored by Krishna Murari, J., as he then was) 8 : 2012 ACJ 1891 (authored by Deepak Gupta, J., as he then was) 9 (supra), ground that the driver was not duly licensed on the date of the accident, i.e., an expired licence having not been renewed within thirty (30) days of the expiry of the licence as provided in sections 14 & 15 of the MV Act. In this context it was observed that the Swaran Singh.10 case did not deal with the consequences if the licence is not renewed within the period of thirty (30) days. If the driving licence is not renewed within thirty (30) days, it was held, the driver neither had an effective driving licence nor can he said to be duly licenced. The conclusion, thus, was that the driver, who permits his licence to expire and does not get it renewed till after the accident, cannot claim that it should be deemed that the licence is renewed retrospectively. 20. The learned Judge in National Insurance Co. Ltd. v. Hem Raj, debated the question of the consequences of the MV Act being a beneficial piece of legislation. Thus, if two interpretations were possible, it was opined that the one which is in favour of the claimants should be given, but violence should not be done to the clear and plain language of the statute. Thus, while protecting the rights of the claimants by asking the insurance company to deposit the amount, the recovery of the same from the insured would follow as the 10 (supra) sympathy can only be for the victim of the accident. The right which has to be protected, is of the victim and not the owner of the vehicle. It was, thus, observed in para 18 as under : “18. The right which has to be protected, is of the victim and not the owner of the vehicle. It was, thus, observed in para 18 as under : “18. When an employer employees a driver, it is his duty to check that the driver is duly licensed to drive the vehicle. section- 5 of the Motor Vehicles Act provides that no owner or person incharge of a motor vehicle shall cause or permit any person to drive the vehicle if he does not fulfil the requirements of sections 3 and 4 of the Motor Vehicles Act. The owner must show that he has verified the licence. He must also take reasonable care to see that his employee gets his licence renewed within time. In my opinion, it is no defence for the owner to plead that he forgot that the driving licence of his employee had to be renewed. A person when he hands his motor vehicle to a driver owes some responsibility to society at large. Lives of innocent people are put to risk in case the vehicle is handed over to a person not duly licensed. Therefore, there must be some evidence to show that the owner had either checked the driving licence or had given instructions to his driver to get his driving licence renewed on expiry thereof. In the present case, no such evidence has been led. In view of the above discussion, I am clearly of the view that there was a breach of the terms of the policy and the Insurance Company could not have been held liable to satisfy the claim.” 21. We have reproduced the aforesaid observations as it is our view that it sets forth lucidly the correct legal position and we are in complete agreement with the views taken in all the three judgments of three different High Courts with the culmination being teh elucidation of the correct legal principle in the judgment in Hem Raj case”. 23. The Hon’ble apex Court while considering the question of absence of license has clearly held that when employer employs a driver it his duty to check that the driver is duly licensed to drive vehicle. 23. The Hon’ble apex Court while considering the question of absence of license has clearly held that when employer employs a driver it his duty to check that the driver is duly licensed to drive vehicle. The Hon’ble apex Court has considered the mandate of section 5 of the Motor Vehicles Act which enjoins upon an owner or the person in-charge of a vehicle that he shall ensure that any person who does not fulfill the requirement of section 3 and 4 of the Motor Vehicles Act does not drive the vehicle. 24. The arguments of the learned counsel for the claimants/owners that driver was not disqualified is not relevant for the purposes of the present case. The counsel for the claimants has placed heavy reliance on the case of Kalyan Singh (supra). But, in the said case, the language of the policy was that person driving vehicle holds or had held and has not been disqualified from holding an effective driving licence. Thus, this language of ‘had held’ was taken into account. But, in the present case, the insurance policy clearly does not provide any such condition. In the present case, the policy clearly provides for the persons or classes of persons entitled to drive. The said condition is provided as under :-- “Persons or classes of persons entitled to drive : Drivers clause : persons or classes of persons entitled to drive :-- Any person including the insured provided that the person driving holds an effective and valid driving license to drive the category of vehicle insured hereunder, at the time of accident and is not disqualified from holding or obtaining such a license. Provided also that a person holding an effective and valid learners license to drive the category of vehicle insured hereunder may also drive the vehicle when not used for transport of passengers at the time of accident and that the person satisfies the requirements of Rule 3 of Motor Vehicle Rule 1989.” 25. It is thus clear that the language of the condition for persons eligible to drive in the present policy is markedly different. It is not about the question of disqualification but existence of valid driving licence on the date of accident. It is thus clear that the language of the condition for persons eligible to drive in the present policy is markedly different. It is not about the question of disqualification but existence of valid driving licence on the date of accident. In this view of the matter and as per the law as laid down by the Hon’ble apex Court, it is hereby held that the insurance company is not liable to pay compensation to the claimants for the death due to the negligent driving by the driver of the bus. However, looking to the fact that the vehicle was insured and the deceased person was a third party, the breach of insurance policy is the dispute between the owner and the company for which the claimants cannot be made to suffer. Thus, it is hereby directed that the insurance company first make the payment of compensation to the claimants and then it can recover the same from the owner/driver of the bus. 26. In view of the above analysis, it is hereby directed that the insurance company shall pay the entire amount of compensation i.e. Rs.11,81,566/- to the claimants and then it can recover the same from the owner/driver of the vehicle. Rest of the conditions of the award with respect to interest and disbursement shall remain intact. If the claimants have already recovered some or any part of compensation from the owner/driver then to that extent the Insurance Company shall not be liable to make payment of compensation. 27. With the above terms, both the appeals stand partly allowed.