Point of law: Section 110A and Section 110B of Motor Act, 1988 are not merely procedural provisions. They substantively affect the rights of the parties. The right of action created by Fatal Accidents Act, 1855 was 'new in its species, new in its quality, new in its principles. In every way it was new. The right given to legal representatives under Act, 1988 to file an application for compensation for death due to a motor vehicle accident is an enlarged one. This right cannot be hedged in by limitations of an action under Fatal Accidents Act, 1855. New situations and new dangers require new strategies and new remedies.

JUDGMENT :

AJAI TYAGI, J.

1. By way of this appeal, the claimants have challenged the judgment and order dated 03.05.2016 passed by Motor Accident Claims Tribunal/Additional District and Sessions Judge, Court No. 11, Ghaziabad (hereinafter referred to as ‘Tribunal’) in M.A.C.P. No. 111 of 2015 awarding sum of Rs. 3,08,000/- as compensation to the claimants with interest at the rate of 7% per annum.

2. Heard Mr. Alok Kumar Singh, learned counsel for the appellants and Mr. Ramanuj Pandey, learned counsel for the respondents. Perused the record.

3. The accident is not in dispute. The Uttar Pradesh State Road Transport Corporation (in short “U.P.S.R.T.C.”) has not challenged the liability fastened on it. In this case, Tribunal has fixed 20% contributory negligence of the deceased.

4. The claimants-appellants filed Motor Accident Claim Petition against the U.P.S.R.T.C. with the facts that on 17.01.2012 deceased Devkidas was going to his work place at 6:30 AM. When he crossed by-pass road and reached the other side, a U.P.S.R.T.C. bus came from the side of Delhi bearing No. UP-84F-9208, which was being driven in a very rash and negligent manner by its driver, which hit the deceased from behind. The deceased sustained fatal injuries and died on the spot.

5. The U.P.S.R.T.C. respondent in its written statement admitted the factum of accident but contended that deceased was himself negligent. He all of sudden came in front of the bus by jumping the divider. Accident could have been avoided if the deceased would have not been so negligent.

6. Learned counsel for the appellants has submitted that deceased was not negligent in accident. It is also submitted that at the time of accident, the deceased had already crossed the road and the driver of the bus hit him on the side of the road by rash and negligent driving.

7. Per contra, learned counsel for the U.P.S.R.T.C. has submitted that on the basis of evidence on record, it is established that deceased was crossing the road at the place which was not ment for crossing and all of sudden, he came in front of the bus due to his own negligence. Learned counsel for the respondents has also submitted that the judgment and order passed by Tribunal also does not suffer from any such infirmity or illegality which may call for any interference by this court.

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 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.

9. 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.

10. 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 relative one. It is rather a comparative term. What may be negligence in o