JUDGMENT :

AJAY TYAGI, J.

1. Both these appeals arise out of same judgment and order dated 6.2.2008 passed by District Judge, Motor Accident Claim Tribunal, Kanpur Nagar (herein after referred to as 'the Tribunal') in Motor Accident Claim Petition No.929 of 2004 (Amit Kumar Yadav vs. The New India Assurance Co.Ltd. and another)

2. FAFO NO.1285 of 2008 is filed by the New India Assurance Co.Ltd. for setting aside the impugned judgment with the prayer that claim petition be dismissed while FAFO No.1489 of 2008 is filed by the claimant for enhancing the award. Since, both the appeals have arisen out of the same judgment, they are heard together.

3. Brief facts of the case are that a motor accident claim petition No.929 of 2004 is filed by claimant, namely, Amit Kumar Yadav before learned Tribunal at Kanpur Nagar for seeking compensation due to sustaining severe injuries in the road accident. It is averred in claim petition that on 1.9.2003 at about 10:30 a.m., the claimant was going on bye-pass road between the Naubasta and Gopal Nagar, District-Kanpur Nagar by riding his bicycle bearing No.UP78AG/4410, when he was hit by rashly and negligently driven tanker bearing No.UP70-B-9916. In this accident, the wheel of the aforesaid tanker ran over both the legs of the claimant and crushed his legs. The claimant was admitted in hospital. First information report of the accident was lodged in concerned police station. It is also averred in petition that the age of the injured claimant was 21 years and he had passed B.Sc.

4. After analyzing the facts and evidence on record, the learned Tribunal allowed the claim petition and awarded a sum of Rs.15,02,000/-with 6% per annum rate of interest. Aggrieved with the judgment, the New India Assurance Co.Ltd., which is the Insurance Company of offending tanker, preferred the appeal and claimant also preferred the appeal for enhancing the compensation.

5. Heard Shri Rakesh Bhadur, learned counsel for the appellant-Insurance Company and Shri Mahendra Pratap Singh, learned counsel appearing on behalf of respondents claimants.

6. At the very outset, Shri Rakesh Bahadur, learned counsel for the Insurance Company, submitted that the driver of the tanker in question was not at all responsible for the accident and injuries sustained by the claimant but the aforesaid tanker was not directly involved in the accident. It is also submitted that learned Tribunal has rejected the plea of contributory negligence and held that the claimant was not contributor to the accident at all. Learned Counsel has relied on the judgment in Bijoy Kumar Dugar vs. Bidya Dhar Dutta and others, (2006) 3 SCC 242.

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