Point of Law : Negligence - Negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence.

JUDGMENT :

Subhash Chand, J.

1. Heard learned counsel for the appellant and learned counsel for the respondent-Insurance Company.

2. This appeal, at the behest of the claimants, challenges the judgment and award dated 7.5.2004 passed by Motor Accident Claims Tribunal/Additional District & Sessions Judge, Room No.14, Kanpur Nagar (hereinafter referred to as 'Tribunal') in M.A.C.P. No.642 of 2001 awarding a sum of Rs.8,88,608/-with interest at the rate of 6% as compensation.

3. The accident is not in dispute. The respondent has not challenged the liability imposed on them. It is submitted by learned counsel for the appellants that the Tribunal has deducted 30% of the award which is bad as the deceased was not the author or the coauthor of the accident having taken place as he was not plying the vehicle which met with accident rather he was sitting in the same.

4. It is submitted by learned counsel for the appellant that the deceased was 31 years of age at the time of accident and was Engineer in Railways. His income according to the counsel for the claimants was Rs.12,500/-and the Tribunal has erred in assessing the income of the deceased to be Rs.9,615. It is further submitted that the Tribunal has not granted any amount towards future loss of income of the deceased which should be granted in view of the decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. It is further submitted that the amount granted under non-pecuniary damages are on the lower side and it should be as per the decision in Pranay Sethi (Supra). It is further submitted that the deduction towards personal expenses of the deceased should be 1/4th as he was survived by her widow, a minor son and parents. It is also submitted that interest should be 12%.

5. As against this, learned counsel for the respondent has submitted that the Tribunal cannot be said to have committed any error in considering the income of Rs.9165/-as the basic income of the deceased who was Engineer in Railways was Rs.6500/-. It is further submitted that the Tribunal has committed an error apparent on record in granting multiplier of 17 which should be 16 as the deceased was 31 years of age at the time of his death. It is further submitted that the interest awarded by the Tribunal is just and proper and does not call for any interference.

6. Having heard the learned counsel for the parties, let us consider the negligence from the perspective of the law laid down.

7. The term negligence means failure to exercise care towards others which a reasonable and prudent person would in a circumstance or taking action which such a reasonable person would not. Negligence can be both intentional or accidental which is normally accidental. More particularly, it connotes reckless driving and the injured must always prove that the either side is negligent. If the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable otherwise the principle of “res ipsa loquitur” meaning thereby “the things speak for itself” would apply.

8. The principle of contributory negligence has been discussed time and again. A person who either contributes or author of the accident would be liable for his contribution to the accident having taken place.

9. The Division Bench of this Court in First Appeal From Order No. 1818 of 2012 ( Bajaj Allianz General Insurance Co.Ltd. Vs. Smt. Renu Singh And Others) decided on 19.7.2016 has held as under :

“16. Negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relat