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 :

KAUSHAL JAYENDRA THAKER, J.

1. Heard Sri. Vidya Kant Shukla, learned counsel for the appellant and Sri. Rajiv Ojha, learned counsel for the respondent-Insurance Company.

2. This appeal, at the behest of the claimants, challenges the judgment and award dated 23.11.1998 passed by IInd-Additional District Judge (Motor Accident Claims Tribunal) Azamgarh, (hereinafter referred to as ‘Tribunal’) in M.A.C. No. 87 of 1990.

3. Brief facts as culled out from the record are that on 07.05.1990 at 2:00 p.m. in front of house of Madhuban Murari Kahar, Police Station Kandharpur, District Azamgarh, driver of jeep bearing no. UHW-5319 driving his jeep negligent and rashly hits Prabhuram's tempo and as a result of which Prabhuram sustained grievous injuries and succumbed to his injuries on the spot.

4. The deceased was 25 years of age at the time of accident. He was driving tempo and earning Rs. 1000/- p.m. and maintaining agriculture field. He was survived by his mother, widow and three sons and two daughters. The Tribunal has considered his income to be Rs. 15,000/- p.a. deducted 1/3rd towards personal expenses of the deceased, granted multiplier of 17, granted Rs. 5,000/- towards consortium, granted Rs. 2,000/- towards funeral expenses and ultimately assessed the total compensation to be Rs. 92,000/-.

5. Learned counsel for the appellant has submitted that the witnesses have deposed that driver of the jeep was driving the vehicle rashly and negligently. The charge-sheet was laid against the driver of the jeep and not against the deceased. The ocular version is in favour of deceased. It is further submitted that therefore issue of negligence has been wrongly decided just because of vehicles had collided on the highway but on tempo side which can be said to be a non metal road. It is further submitted that income of Rs. 15,000/- p.a. is on the lower side. No amount of future loss of income is granted. Multiplier of 18 should have been granted instead of 17 and Rs. 7,000/- was the only amount is granted for loss of consortium and towards funeral expenses. The Tribunal has not granted any amount under the head of interest. The undisputed facts are that accident occurred on 07.05.1990. The deceased was the driver and owner of the tempo, he was driving the vehicle and was maintaining agricultural field. He was young person of 25 years who had left behind him three sons and two daughters, a mother and a widow and therefore, the deductions should have been 1/5th as per the judgments of Sarla Verma and Sushma Thomas and was applicable to facts of those days and multiplier should have been given 18 and not 17.

6. As against this, Shri Rajiv Ojha, learned counsel for the respondent-Insurance Company contends that as far as issue of negligence is concerned it was the tempo vis-a-vis jeep and the deceased was driving tempo which is bigger vehicle then the jeep. It is further submitted that the finding of fact as far as negligence is concerned should not be disturbed. It is further submitted that the quantum of compensation awarded by the Tribunal is just and proper and does not call for any interference by this Court.

7. Having heard the learned counsel for the parties, as far as negligence is concerned I have perused the judgment, the fact that deceased was not having permanent license and his vehicle was overloaded is a factor which goes against the applicant. I am in agreement with Shri Rajiv Ojha, learned counsel for respondent Insurance Company that the finding as far as negligence is concerned not to be interfered and the same not interfered.

8. 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 reckl