Point of Law: Form 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.

JUDGMENT :

Kaushal Jayendra Thaker, J.

1. Heard Sri Shreesh Srivastava, learned counsel for the appellant, Sri Arvind Kumar, learned counsel for the respondent, none appears for the owner and perused the judgment and order impugned.

2. This appeal, at the behest of the claimants, challenges the judgment/award dated 30.3.2021 and the decree dated 3.4.2021 passed by Motor Accident Claims Tribunal/ Presiding Officer , Kanpur Nagar (hereinafter referred to as 'Tribunal') in M.A.C.No.1014 of 2016 awarding a sum of Rs.19,77,831/-with interest at the rate of 7% as compensation.

3. The accident is not in dispute. The issue of negligence decided by the Tribunal is in dispute. The respondent has not challenged the liability imposed on them. The issues to be decided by this Court are, the quantum of compensation awarded and negligence.

4. Brief facts of the present case are that on 7.5.2016 at about 2:30 p.m, near village Gopalpur, one Magic loader vehicle bearing number U.P.-71 B-9992 was coming from Kanpur side suddenly dashed Gyan Prakash @ Gyan Prakash Uttam who driving his own car on correct side and was plying the vehicle forwards Kanpur from Jahanabad in district Fatehpur. He received several injuries from the aforesaid accident and thereafter he was taken to C.H.C. Bhitargoan there he was declared dead. He died on 7.5.2016 due to the injuries received in the aforesaid motor traffic accident.

5. It is submitted by learned counsel for the appellant that the deceased was 48 years of age at the time of accident and was in the business of dealing in Jwellery and was having his shop. His income was considered by the Tribunal to be Rs.3,58,676/-per year which according to the counsel for the appellant is on the lower side and should be considered at least Rs.4,05,994/-per year as per the income tax return of year preceding the accident or of the year when accident occurred. It is further submitted that the Tribunal has granted amount towards future loss of income of the deceased which is on lower side and should be granted in view of the decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 and Rule 220(i) of U.P. Motor Vehicles Rules, 1998. It is further submitted that the amount granted under non-pecuniary damages are on the lower side requires enhancement in view of the decision of New India Assurance Company Limited Vs. Somwati and others, 2020 LawSuit ( SC) 559. Learned counsel for the appellant further submits that the ocular version of PW-2 is categorical that the road was 12'5 feet wide and, therefore, the decision of the Tribunal that the deceased had contributed 50% to the accident is bad and the facts prove otherwise.

6. Learned counsel for the appellant has heavily relied on the decisions of (a) Oriental Insurance Company Limited Vs. Sangita and others, 2020 LawSuit(SC) 559, (b) Bajaj Allianz General Insurance Company Limited Vs. Venu Singh and others, 2016 LawSuit (All) 4465, (c) Kumari Kiran and others Vs. Sajjan Singh and others, 2014 LawSuit (SC) 827 (d) Sangita Arya and Others Vs. Oriental Insurance Company Limted and others, (2020) 5 SCC 327 and (e) New India Assurance Company Limited Vs. Somwati and others, 2020 LawSuit ( SC) 559 so as to contend that the Tribunal has misdirected itself in not considering the income tax return and decided that the deceased was earning Rs.3,58,676/-which was the mean of three years. Learned counsel has contended that the vehicle driven by the deceased was a smaller vehicle and driver of the truck has not stepped into witness box and therefore the finding of deceased being co-author of accident requires reassessment by this Court.

7. As against this, learned counsel for the Insurance Company has submitted that the award does not require any interference. The accident occurred on 7.5.2016 and the decision of the Tribunal is in consonance with twin decisions namely, Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 for multiplier and comp