Maheswaran, J.

1. On the 24th of August, 1977 at about 4-30 p.m, Manivannan, the appellant in C.M.A No. 302 of 1981 proceeded on his bicycle along Foxen Strect, Perambur. At that time, a tractor driven by R.W 2, Purushothaman, entered the strect from the other end. Entry from the other end is prohibited and there is a board with “No Entry” sign. Manivannan, on seeing the tractor, stopped his bicycle and rested his foot on the pavement. But the tractor, according to the allegations of the appellant, Manivannan, was driven rashly and negligently and knocked Manivannan. He fell down and sustained injuries. Spleen was cut. There was also a cut in the liver. He was taken to the hospital. Spleenectomy was performed on him. The liver that was torn was sutured. He also underwent an emergency operation. He was an in-patient for about fifteen days in the hospital and then was an out-patient. He filed an application through his father-guardian claiming a total compensation of Rs. 1,00,000/-. The Tribunal found that the accident was due to the rash and negligent driving by the driver of the tractor. The Tribunal also found that the driver of the tractor, R.W 2, did not have a licence on the date of occurrance. In the end, the Tribunal awarded a compensation of Rs. 13,600 directing the owner of the vehicle, the first respondent in the petition, to deposit the entire amount. The claimant is aggrieved as the compensation awarded is not adequate and as the Tribunal has dismissed the petition as against the insurance company. He has filed C.M.A No. 302 of 1981. The owner of the vehicle has filed C.M.A No. 165 of 1981 questioning the finding that the vehicle was driven rashly and negligently by the driver of the tractor. She has also questioned the quantum.

2. There is clear evidence of the fact that Foxen Street has got entry on only one side. There is also a “No Entry” signboard. There was some dispute whether this sign board was there on the date of the occurrence. But the evidence of the police officer and the two witnesses, P.W 3 and 4, prove that the sign board was there. The occurrence was witnessed by P.W 3. The ocular witness, P.W 3, has clearly stated that when the tractor came from the opposite direction ignoring the “No Entry” board the boy on the cycle rested his foot on the pavement and when the trailor knocked the appellant-boy, he fell down unconscious. Some criticism was levelled against the evidence of this witness on the ground that he could not have seen the occurrence from a distance of nearly 400 feet or 400 yards (witness says both feet and yards). But then his evidence relating to the occurrance is clearly corroborated by the evidence of P. 4, the victim himself. It was suggested that these injuries on the person of the injured are sustained when he fell down. There is clear evidence that the cycle was knocked down by the tractor and the boy fell down and was caught underneath the tyre of the tractor. His spleen was cut. The street is 4.5 metres wide and the tractor itself measures 40′ in length and the driver of the tractor has entered the lane when there is prohibition for such entry from the other side in the narrow lane. He has driven the tractor which knocked down the cyclist who stopped his cycle and was resting his foot on the pavement. The Tribunal has pointed out that this is per se negligence and rashness. The Tribunal is not wrong in its view. Having entered the lane from the wrong end where entry is prohibited, the tractor driver, when he found that there is no space for both the cycle and the tractor to move, should have stopped the tractor and allowed the cyclist to proceed. The cyclist on his part has stopped his cycle. It is therefore manifest that the accident was caused by the negligence and rashness on the part of the driver of the tractor. We confirm that finding.

3. Some arguments were advanced as regards contributory negligence. We have found that the accident was due to the negligent driving of the tractor by its driver. No question of contributory negligence arises, because the cyclist was on the correct side of the road, but it was only the tractor which entered from the “No Entry” side and on seeing the tractor the boy stopped and rested his foot on the pavement and therefore it cannot be said that the cyclist has contributed to the accident.

4. The question now to be considered is as to what compensation is payable. Dr. Janardhanam, R.W 1 has stated that Manivannan, the appellant, was admitted on 24th August, 1977 and was discharged on 8th September, 1977, that he was alleged to have been knocked down by the tractor when he was proceeding on a cycle, that on opening the abdomen, he found about 1000 C.C of blood aspirated and found the spleen cut, that Spleenectomy was performed, and that there was also a tear on the liver which was sutured. Though he would say that there was nothing pathologically wrong with him, one has to take note of the fact that the spleen was removed. He has been an in-patient from 24th August, 1977 to 8th September, 1977. He was also treated as an out-patient for about three or four months. That is the evidence of his father. Ex. P-1 series are the outpatient tickets. They would show that he was taking treatment as an out-patient till August, 1977. The claimant appellant made various claims under different heads. In regard to transport to hospital, he claimed Rs. 750. He claimed Rs. 2,000/- towards extra-nourishment and Rs. 50 towards damage to clothing and also Rs. 1,200 towards legal expenses. He claimed a sum of Rs. 16,000 as compensation for pain and suffering and a sum of Rs. 80,000 as compensation for continuing and permanent disability. The Tribunal has negatived the claim for legal expenses as well as the claim for damage to clothing on the ground that there was no sufficient evidence. But, in regard to extra-nourishment, the Tribunal granted Rs. 500. Even though the Tribunal found that the agony and suffering will be considerable, it has granted only Rs. 3,000 when the appellant has made a claim for Rs. 16,000. As regards the compensation for continuing permanent disability, the boy has to depend upon others throughout his life and the marital prospects are also remote. Finding that there is no precise medical evidence about the implication of the absence of spleen, the Tribunal fixed the compensation on that head at Rs. 10,000 and in the end granted Rs. 13,600.

5. The boy was admitted in the hospital and his spleen has been removed. There was also a tear in the liver which was sutured. From Fishbein's Illustrated Medical and Health Encyclopedia, it is seen that spleen is not an indispensable organ, as people survive even after its removal, but at times the spleen contracts, discharging a quantity of blood into the general circulation and for that reason, the spleen is helpful in maintaining proper volume of blood in the circulation, and that it is believed to play an important part in the defensive mechanism against infection. The absence of spleen therefore would mean that the major part which the spleen plays in the matter of defence against infection will not be available to the boy. Taking that circumstance into consideration, it would not be wrong to hold that the longevity of the boy in course of years would be affected and may lead to complication in old age. Having regard to that circumstance, the fixation of Rs. 10,000 under the head “compensation for continuing and permanent disability” is rather low and we fix the compensation at Rs. 20.000 under that head.

6. As regards the compensation for pain and suffering, the Tribunal has awarded a sum of Rs. 3,000. The agony and suffering would have certainly been considerable as he was an in-patient in the hospital for fifteen days. He has also undergone an emergency operation. There is evidence that he feels pain at times. Most unfortunately, the doctor has not been cross-examined on the question of pain. Moreover, we feel that a compensation of Rs. 8,000 will be adequate. In all, he will be entitled to Rs. 28,600 and when rounded off, to Rs. 29,000.

7. The more important question is whether the second respondent, the insurance company, is liable. On this aspect, our attention was drawn to the evidence of the driver who has admitted in his evidence that he did not have the tractor licence on the date of accident. The Inspector of Police also in his evidence stated that the driver was charged for violation of S. 3 of the Motor Vehicles Act and under S. 338, I.P.C and the driver admitted that he has no licences for driving the tractor and was convicted and sentenced to pay a fine. In his evidence before the Tribunal, he stated that the driving licence was taken away by the police who compelled him to admit the offence and that therefore he has admitted the offence. In New India Assurance Co. Ltd. v. Shankar 1985 II M.L.J 410=98 L.W 431., a Division Bench of this Court has hold that merely proving that on the date of accident the driver did not have a licence and that he pleaded guilty and was convicted in the Criminal Court itself, is not enough to hold that the insurance company is not liable for the claim. The admission of the driver before the Criminal Court, is therefore of no significance. That apart, the driver himself has stated that he had a driving licence, that at first he had a licence for light motor vehicle and in 1976 he got a licence for heavy vehicles and that on 30th September, 1976 he got an endorsement for tractor driving. Ex. P4 very clearly shows under the column “particulars regarding driving licence” that the driver had licence 1146.PDL/76 valid till 29th July, 1979. These particulars were obtained from the Deputy Commissioner of Police (Traffic), Madras, on a requisition by the claimant's father. That prima facie shows that the driver had a heavy vehicle driving licence. Under S. 109 of the Motor Vehicles Act, a registering authority at the police station or the officer in charge of the police station has to furnish information at the disposal of the authority relating to the identification marks and other particulars of the vehicle, the name and address of the person using the vehicle at the time of accident on requisition if it is made by the claimant or by the insurer against whom a claim has been made. The claimants have resorted to S. 109 for getting this information. When there is clear evidence of the fact that the tractor driver had a licence and when his oral evidence is to the effect that he was having a heavy vehicle licence, the onus shifts to the insurance company to prove that he had no driving licence on the date of accident. Horcinvo V. Kamat v. Alfredo Antiono Doe Martine . 1985 A.C.J 397., was a case where the insurance company contended that the driver whose vehicle was involved in the accident did not have a driving licence at the time of accident. The driver did not produce the licence when asked to do so in cross-examination. Except this, the insurance company did not adduce any other evidence. In such circumstances, the Supreme Court pointed out that an advance inference against the driver cannot be drawn and that the onus was on the insurance company to prove that the driver had no driving licence to escape liability and the mere non-production of the licence by the driver does not exonerate the insurance company. Apart from this, it has been brought to our notice that this tractor fell within the definition of medium vehicle. Under Ex. P5, counsel for the appellant, addresses the counsel, Mr. Subramanian, to furnish details of the laden weight and unladen weight of the vehicles. The counsel has made an endorsement on the back of the letter that the tractor had been sold and the unladen weight of the trailer is 1990 kgs. and the unladen weight of the tractor is 3880 kgs. Under S. 2(9) of the Motor Vehicles Act, a heavy goods vehicle is defined as any goods vehicle the registered laden weight of which or a tractor the laden weight of which exceeds 11,000 kilograms. Now this tractor which weighed 5870 kgs. could not be called a heavy goods vehicle. S. 2(13) which deals with the definition of light motor vehicle shows that a transport vehicle or omnibus, the registered laden weight of which, or a motor car or tractor the laden weight of which does not exceed 4,000 kilograms, is a light motor vehicle. Now, this vehicle which was involved in the accident could not be a heavy goods vehicle, nor a light motor vehicle, but it would satisfy the definition “medium goods vehicle” for it is a vehicle other than a light motor vehicle, heavy goods vehicle or road roller. Under S. 7(7) of the Motor Vehicles Act, a person who passed the test in driving a heavy goods vehicle shall be deemed to have passed the test in driving any medium goods vehicle or light motor vehicle. Though the driver of the tractor does not possess a licence for driving the tractor, he would never the less be a person qualified to drive a medium vehicle as it has been established that he was having a driving licence for heavy vehicle. On that view, he would be considered a driver having a valid licence for driving the tractor. When once this conclusion is arrived at, the insurance company would be liable to pay the amount of compensation.

8. For these reasons, we enhance the compensation to Rs. 29,000. The appellant in C.M.A No. 302 of the 1981 will be entitled to enhanced compensation of Rs. 29,000 (Rupees twenty nine thousand only) against both the respondents including the insurance company. He will be entitled to interest at 12 per cent from the date of petition till the date of payment. The insurance company will be liable for the payment of the entire amount. The owner of the vehicle will take back the amount deposited by him. C.M.A No. 302 of 1981 is allowed with costs. C.M.A No. 165 of 1981 is dismissed with costs.

VCS.