Point of Law - Purpose of keeping compensation is to safeguard interest of claimants.

JUDGMENT :

(Oral Judgment by Ajai Tyagi, J.)

1. By way of this appeal, the claimants have challenged the judgment and award dated 05.09.2017 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.12, Kanpur Nagar (hereinafter referred to as ‘Tribunal’) in M.A.C.P. No.926 of 2014 (Smt. Kusuma Devi and Others Vs. Shrawan Kumar Mishra and Others) awarding sum of Rs.17,13,000/-as compensation to the claimants with interest at the rate of 7% per annum.

2. Heard Mr. Shyam Narain Pandey, learned counsel for the appellants and Mr. Pawan Kumar Singh, learned counsel for the respondent-Insurance Company. Perused the record.

3. The accident is not in dispute. The driver of the said vehicle was having valid and effective driving licence on the date of accident is also a decided fact. The vehicle being insured and there being no breach of policy condition is a finding, which has attained finality. The Insurance Company Ltd. (hereinafter referred to as “Insurance Company”) has not challenged the liability on it. In this case, learned Tribunal has fixed 45% contributory negligence of the deceased which the appellants have objected vehemently and argued this point along with quantum fixed by learned Tribunal.

4. Brief facts of the case are that claimants-appellants filed Motor Accident Claim Petition before the learned Tribunal with the averments that on 21.06.2014 at about 9:45 PM (night) the deceased Lal Bahadur Dwivedi was coming from his field to the home by his motorcycle. When he reached at village Bhinduri within the jurisdiction of police station Chaubepur, District Kanpur Nagar, a truck bearing no.H.R. 38A 5791, going ahead of the motorcycle of the deceased, the truck driver suddenly applied thebrake without any indication, due to which the motorcycle of the deceased rammed into the truck going ahead.

5. In this accident, the deceased sustained fatal injuries and he died on way to the hospital. Manoj Kumar-nephew of the deceased was also travelling in his motorcycle behind the deceased, who saw the accident and taken the deceased to the hospital.

6. The issue regarding the insurance of the offending truck and driving licence of its driver have been decided in affirmative. As far as question of negligence is concerned, Mr. Pawan Kumar Singh, learned counsel for the Insurance Company has submitted that deceased was negligent and responsible for the accident because he hit the truck going ahead. Learned counsel for the Insurance Company has relied on the decision of Apex Court in Nishan Singh and Others Vs. Oriental Insurance Company Ltd. and Others, 2018 (6) Supreme Court Cases 765.

7. It is further submitted that since the deceased was himself negligent, except grant of non pecuniary damages, no other amount would be payable to the claimants-appellants.

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 loquitur” meaning thereby “the things speak for itself” would apply.

9. 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.

10. 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