K.N Saikia, J.:— This miscellaneous first appeal is from the judgment and award of the Motor Accident Claims Tribunal, Kamrup, Gauhati awarding a sum of Rs. 25,000/- as solatium as against claim of Rs. 3,50,000/- as compensation for the death of the appellant's husband, Narendra Basumatari, who along with his pillion rider, Raghunath Barman, died in a motor accident their motor cycle No. ASU 7403 having collided with bus No. ASU 6751 at Jalimura near Baihata Chari Ali as they were proceeding towards Gauhati from Nalbari.
2. The learned Tribunal found that deceased Basumatari,. who was driving the motor cycle, presumably had no driving licence at the time of the occurrence and, as such, if the driver of the bus was guilty of rash driving, deceased Basumatari was not less guilty for driving his motor cycle without a valid driving licence; and that in any case deceased Basumatari must be held to have substantially contributed to the negligence as might have been committed by the driver of the bus.
3. Having arrived at the above conclusion as to the negligence of deceased Basumatari on account of driving the motor cycle without licence, the learned Tribunal found itself unable to grant the appellant any compensation other than Rs. 25,000/- only as solatium with interest at 6% per annum from the date of filing the claim petition until realisation and costs of Rs. 5000/- only.
4. Mr. C.K Sarma Barua, the learned counsel for the appellants, submits inter alia that she conclusion as to negligence of deceased Basumatari on the sole ground of his being without a driving licence, is not sustainable in law; inasmuch as deceased Basumatari was a Government servant and purchased the motor cycle several years' back taking motor cycle advance-and the papers fell scattered at the place of accident and the licence could not be recovered; the appellant widow tried but could not obtain particulars thereof; and that the total denial of compensation on the ground of contributory negligence and resort to the doctrine of res ipsa loquitur, was not justified.
5. Mr. R. Choudhury, the learned counsel for the insurer, refutes Mr. Sarma Barua's contention submitting that from the nature of the accident itself it is clear that deceased Basumutari, who was driving his motor cycle carrying a pillion rider and without a driving licence, contributed towards the accident and hence no compensation should be granted and that the solatium awarded is justified.
6. We have given anxious consideration to the facts and circumstances of the case. On perusal of the impugned judgment and award we do not find any reasonable discussion about the nature and locus of the accident and the possible causes-thereof. We are not inclined to accept the contention that mere driving of the motor cycle without a valid licence, as alleged, would amount to contributory negligence irrespective of the place, speed and the attendant circumstances of the accident. As stated? by Baron Alderson: “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man? would not do”. Generally speaking, negligence will not be a ground of legal liability unless the party whose conduct is in question is already in a situation that brings him under the duty of taking care. Considered in this light, we find it difficult to hold that driving a motor cycle without a licence, without anything more, can be held to be a negligence contributing to an accident. The doctrine of ‘res ipsa loquitur’—the thing speaks for itself, was declared by the Exchequer Chamber in 1865 in Scott v. London Dock Co., 3 H. & C. 596, in these terms: “There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care”. Res ipsa loquitur is a rebuttable presumption or inference that defendant was negligent, which arises upon proof that instrumentality causing injury was in defendant's exclusive control, and that the accident was one which ordinarily does not happen in absence of negligence. The doctrine is rule of evidence whereby negligence of alleged wrongdoer may be inferred from mere fact that accident happened provided character of accident and circumstances attending it lead reasonably to belief that in absence of negligence it would not have occurred and that thing which caused injury is shown to have been under management and control of alleged wrongdoer. Under the doctrine the happening of an injury permits an inference of negligence where plaintiff produces substantial evidence that injury was caused by an agency or instrumentality under exclusive control and management of defendant, and that the occurrence was such that in the ordinary course of things would not happen if reasonable care had been used.
7. We are not inclined to accept the proposition that non-possession of valid driving licence while driving a motor cycle itself would justify application of the doctrine of ‘res ipsa loquitur’. For the reasons stated above we find the impugned judgment and award not sustainable in law. Accordingly, we allow the appeal, set aside the impugned judgment and award, and remand the case to the learned Motor Accident Claims Tribunal, Kamrup, Gauhati for disposal in accordance with law as expeditiously as possible, preferably within three months from the date of receipt of the records, on the basis of the evidence already on record. Send down the records forthwith. No order as to costs.
8. We are told that the claimant has already been paid the amount of solatium awarded. The same shall be adjusted against the award, if any, on fresh disposal of the claim by the Tribunal. Let the parties appear before the Tribunal on 18.8.1986 to receive directions of the Tribunal as to further proceedings in the case.