Point of Law : Even if by the fact that the driver and the owner did not appear before Tribunal, subject to a rider to prove that the owner proves that he had taken all cautions, recovery right is granted to the Insurance Company.

JUDGMENT :

Kaushal Jayendra Thaker, J.

1. Heard learned counsel for the appellant and learned counsel for the respondent-claimant. Despite notice, none has appeared for the owner.

2. This appeal challenges the judgment and order dated 2.2.2000 passed by Special Judge/Motor Accident Claims Tribunal, Kanpur Dehat in M.A.C.P. No. 100 of 1992 filed by one Pramod Kumar Srivastava, (respondent-claimant herein) whereby the Tribunal awarded a sum of Rs.1,00,000/-with interest at the rate of 12% as compensation to the claimant.

3. The factual scenario urged by the claimant was the driver of tempo being No. CIW 6668. Break of the said tempo failed and, therefore, the claimant along with one other person was rolling the tempo slowly. At that point of time, one truck being No. HYM 7245 which was being driven rashly and negligently by its driver dashed the claimant which caused multiple injuries to the injured claimant. He had to be hospitalized. He had suffered multiple fractures. He was admitted in Madhuraj Nursing Home. He had claimed a sum of Rs. 1,50,000/-for the tortuous act of the respondent. None appeared for the owner. As far as Insurance Company and the driver are concerned, they filed their reply of negativity and contended that it was the claimant who himself was negligent.

4. At the outset, it is an admitted position of fact that except filing reply, the driver or the owner did not step into the witness box. The Insurance Company has contended that the accident took place due to negligent driving of the injured and not that of the driver of the truck.

5. Learned counsel for the appellant has further submitted that oral testimony of P.W.1 and P.W.2 has been misread by the Tribunal. The second issue on which the appeal has been preferred is that there is breach of provisions of Section 3 of the Act, 1988 and, therefore, the Insurance Company is not liable to indemnify a third party as per the provisions of Section 149 (2) (a) (ii) of the Act, 1988. The Tribunal according to the learned counsel for the appellant has committed an error in not accepting the oral testimony of the investigator appointed by the Insurance Company and has taken a technical stand that if the Transport Authority has not been examined, then no adverse inference can be drawn.

6. It is further submitted that the evidence adduced by the appellant is a public document and, therefore, when it is proved that the Licensing Authority, Solan has not issued the license, this fact should not have been ignored by the Tribunal.

7. Lastly it is submitted that the compensation awarded by the Tribunal is on the higher side.

8. By way of this appeal, the Insurance Company has felt aggrieved as the Tribunal has negatived its contention that the driver of the truck was not negligent. The Insurance Company has also felt aggrieved as though it was proved by them that the driver of the truck was not having driving license to drive the truck, a negative finding has been returned by the Tribunal. This according to the Insurance Company is flaw in the judgment and they could not have been made liable.

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

10. 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.

11. 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 h