JUDGMENT :

1. Heard Sri Maithali Sharan Pipersenia, learned counsel for the appellant and Ms Majima Singh holding brief of Ms Archana Singh, learned counsel for the respondents.

2. This appeal, at the behest of the claimants, challenges the judgment/award dated 25.01.2005 passed by Motor Accident Claims Tribunal/Special Judge (E.C. Act), Jhansi (hereinafter referred to as 'Tribunal') in M.A.C. No. 433 of 2003.

3. Brief facts as culled out from the record are that on 27.04.2003 Dr. Himanshu Nagaria had gone to Hotel Isha Garden situated at Bhedaghat road, Jabalpur for dinner with his friends. When he was returning to Medical College where he was living, near Krishi Upaj Mandi Naka Balsagar a Metador bearing no. M.P. 20 G-1248 was negligently all of sudden stopped by his driver and back light was also switched off due to which motor-cycle of Dr. Himanshu Nagaria bearing No. U.P.-93 D-2391 dashed with the standing Metador causing grievous injuries to Dr. Himanshu Nagaria and on the way to Medical College he succumbed to his injuries.

4. The deceased was 25 years of age at the time of accident. He was a doctor by profession and was pursuing M.D in pediatric and was getting Rs.10,600/- as a stipend. He was survived by his father (since deceased) and in his place his another son namely 1/1. Navnit Nagaria has been substituted vide Court's order dated 15.09.2021 and the mother (who is appellant no. 2). The Tribunal has considered his income to be Rs. 15,000/-p.m, deducted 1/3rd towards personal expenses of the deceased, granted multiplier of 12, granted Rs.10,000/- towards compensation for loss of love and affection, granted Rs,. 15,000/- for compensation for loss of estate, granted Rs. 2,000/- towards funeral expenses and ultimately assessed the total compensation to be Rs.14,72,000/-.

5. Learned counsel for the appellant has submitted that the deceased Himanshu Nagaria was 25 years was a doctor and doing his M.D in pediatrics and getting Rs. 10,600/- p.m as stipend. The learned counsel for the appellant contends that he was below the age of 40 years, the tribunal should have added 50% to his income which is erroneous as it has not added any amount. He has further submitted that he was survived by his father and mother and therefore, the deduction as per the judgements of Sarla Verma and Pranay Shetty and even in those days should be 1/4th and not 1/3rd. It is submitted by him that amount of non pecuniary of Rs. 27,000/- requires to be enhanced.

6. As against this, Ms Majima Singh, advocate appearing for Ms. Archana Singh, learned counsel for the respondents contends that deduction of 1/3rd from personal expenses is not just and proper, it should be 1/2nd.

7. Having heard the learned counsel for the parties, income of the deceased considered by tribunal is Rs. 15,000/- per month as it has been rightly pointed out by Ms Majima Singh, counsel appearing for Ms Archana Singh, counsel for the respondents that record shows that the Tribunal has been more lenient in deciding the income of the deceased as the stipend paid to the deceased was Rs. 10,600/- p.m. We are convinced that the deceased was in his second year of M.D in pediatrics and therefore his personal income can be considered to be Rs. 20,000/- p.m in light of recent decisions. Let us consider the negligence from the perspective of the law laid down.

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