Point of Law: words used are ’below 40 years’ and unless it is clarified that the deceased was below 40 years, addition of 40% is not possible.

JUDGMENT :

Kaushal Jayendra Thaker, J.

1. Heard Sri Sharve Singh, learned counsel for the appellants and Sri Siddarth Jaiswal, learned Advocate appearing Sri Ashok Kumar Jaiswal, learned counsel for the respondent.

2. This appeal, at the behest of the claimants, challenges the judgment and award dated 27.9.2011 passed by Motor Accident Claims Tribunal/Special Judge, (SC/ST Act), Allahabad (hereinafter referred to as 'Tribunal') in Claim Petition No. 292 of 1998 awarding a sum of Rs.3,09,500/-.

3. Brief facts of the case are on the intervening night of 7/8.3.1998 at 00.30 am. on Allahabad-Kanpur Road near Chauphatka which lies within the jurisdiction of Police Station Cantt, Allahabad, the truck bearing No.MP17A/0066, which was being driven rashly and negligently dashed the Maruti Car No.UGV-4647 from opposite direction causing instantaneous death of Vinod Kumar Kesarwani who was driving the Maruti Car.

4. Deceased-Vinod Kumar Kesarwani was 39 years of the age at the time of accident, was doing wholesale trading in fruits and was earning Rs.20,000/-per month. The deceased was survived by his widow, two minor children and mother. The Tribunal has considered his income to be Rs.5,000/-per month, deducted 1/3rd towards personal expenses of the deceased, granted multiplier of 15, granted Rs.9,500/-under non-pecuniary heads and ultimately assessed the total compensation to be Rs.6,00,000/-. The Tribunal held the deceased-who was driving the Car negligent to the tune of 50% and apportioned the amount of compensation to the tune of 50%. The claimants were therefore granted amount of Rs.3,00,000/-plus Rs. 9,500/- as compensation.

5. It is submitted by learned counsel for the appellants that the Tribunal has fallen in error in holding the deceased negligent to the tune of 50%. It is submitted that the Tribunal has failed to consider the evidence on record which proves that the accident in question was caused due to rash and negligent driving of the driver of Truck No.MP-17A-0066 and that the Tribunal has failed to consider the pleadings as well as evidence which clearly establish that the deceased was driving car carefully and cautiously.

6. It is further submitted by learned counsel for the appellants that Tribunal did not grant any amount for future loss of income of the deceased and also the amount awarded under non-pecuniary heads granted by the Tribunal is on the lower side and should be enhanced in view of the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 105. Lastly, learned counsel for the appellant has submitted that the Tribunal has not granted interest on the compensation which is bad in the eye of law.

7. As against this, Sri Siddarth Jaiswal, learned counsel for the respondent-Insurance Company submits that as far as the issue of negligence is concerned, the Tribunal has rightly held the deceased negligent to the tune of 50% as there is head on collision and therefore, it cannot be said that the driver of the truck was solely negligent.

8. It is further submitted by learned counsel for the respondent that the quantum of compensation and non-grant of interest by the Tribunal is just and proper and does not call for any interference by this Court.

9. Having heard the learned counsel for the parties, let us consider the 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 though it 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