Point of law: 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.

JUDGMENT :

AJAI TYAGI, J.

1. By way of this appeal, the appellants (legal heirs of the deceased) have challenged the judgment and order dated 10.10.2017, passed by Motor Accident Claims Tribunal/District Judge, Rampur (herein after referred to as ‘the Tribunal’) in Motor Accident Claim Petition No. 129 of 2016 (Smt. Sushila and Others vs. Amar Pal and Others), whereby the Tribunal awarded a sum of Rs. 8,54,800/- with a default clause that for 21.5.2016 till the amount is deposited, 7% interest would approve as per Section 174 of the Motor Vehicles Act, 1988.

2. Heard Shri Santosh Kumar Tripathi, learned brief-holder appearing for Shri Sandeep Kumar Tripathi, learned counsel for the appellants-claimants, learned counsel for the Insurance Company and perused the record.

3. Motor accident claims petition was filed by the appellants for compensation in connection with the death of the deceased Motilal Yadav with the averments that on 7.2.2016, deceased Motilal Yadav was going with his relative Teerth Raj Yadav by driving Car No. UK-06AG-3903 from Rampur to Rudrapur, District-Udhamsingh Nagar. At about 8:00 a.m., when he reached near Ishanagar Chauki, a Bolero No. UP-22U-3651 came from the side of Rudrapur, which was being driven very rashly and negligently by its driver hit the car. Due to this accident, the car of the deceased fell into a ditch. In this accident, Motilal Yadav and Teerth Raj Yadav sustained injuries and Motilal Yadav succumbed to injuries on the way to hospital. It is also stated that deceased Motilal Yadav was in the business of transport. He was having 12 trucks and his income was Rs. 40,000/- per month. He was also income tax payee. The respondents filed their respective written statements.

4. It is submitted by learned counsel for the appellant that the deceased was income tax payee and he was in the business of transport. His monthly income was Rs. 40,000/- but the Tribunal has assessed his monthly income at Rs. 12,000/- which is on a lower-side. It is also submitted that learned Tribunal has not awarded any sum towards future loss of income. The Tribunal has recorded the findings, wherein the appellant No. 1 has stated that the business of transport is being looked after by the brothers of the deceased and she is getting the income of her share. On the basis of this evidence, Tribunal has held that there is no loss of income from business, but business could grow in future, if the deceased was alive. It is next submitted by learned counsel for the appellants that in the heads of non-pecuniary damages, Tribunal has awarded Rs. 5,000/- for loss of consortium, Rs. 2,500/- for loss of estate and Rs. 5,000/- for funeral expenses, which are also on lower-side whereas rate of interest is allowed only 7%, which should also be enhanced. No other point regarding the quantum of compensation is pressed. On the point of negligence, learned counsel for the appellants submitted that deceased was not negligent while driving the car at the time of accident and the driver of the Bolero car was solely negligent. Therefore, the Tribunal has wrongly assessed 20% contributory negligence of the deceased and the finding pertaining to contributory negligence may be set aside and entire compensation should be paid to the appellants.

5. Learned counsel for the Insurance Company has submitted that as per the evidence of wife of the deceased, she is getting her share of income, which is generated from the transport business, therefore, learned Tribunal has rightly held that there was no loss of future income due to death of the deceased. With regard to the contributory negligence, he has submitted that evidence on record clearly transpires that the deceased was himself negligent in driving the car and the Tribunal has rightly fixed 20% contributory negligence of the deceased.

6. Having heard the learned counsel for the parties, let us con