Point of Law : “Composite negligence” refers to the negligence on the part of two or more persons.

JUDGMENT :

1. Heard Sri Vidya Kant Shukla for the appellants and Ms. Raj Kumari Devi for the respondents.

2. This appeal, at the behest of the claimants, challenges the judgment and award dated 31.03.2016 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.17, Kanpur Nagar hereinafter referred to as 'Tribunal') in M.A.C.P. No. 624 of 2007 awarding a sum of Rs. 9,48,023/- with interest at the rate of 7% as compensation.

3. Brief facts are that on the fateful date i.e. 8.8.2006 at about 9:40 a.m. the deceased was going to join his duties by Scooter, bearing no.UP78Z-4094, and when he reached near Golghar traffic point, Bahad, district Abardin, Andaman (Port Blair), a Army Truck, bearing no.03-D- 152105-M came and dashed with the scooter of the deceased which caused grievous injuries causing death. He succumbed to injuries on the very same day in the hospital.

4. The accident is not in dispute. The claimants have challenged the award on two counts namely negligence and quantum of compensation.

5. Leaned Counsel for the appellant has relied on the decisions in Dinesh Kumar J. @ Dinesh J Vs. National Insurance Company Limited and others, 2018 (1) TAC 337 (SC) and decision of this Court in Smt. Pooja Tiwari and others Vs. Union of India and another, First Appeal From Order No.1663 of 2016, decided on 28.4.2022, so as to contend that the deceased was not negligent and the quantum requires upward modification. It is submitted that the driver of the truck was solely negligent.

6. Learned counsel for the appellant has submitted that the Tribunal has not granted any amount towards future loss of income. It is further submitted that 50% should be added as future loss of income of the deceased in view of the decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 105 as the deceased was below 40 years and was in permanent job. It is further submitted that the amount granted under nonpecuniary head is on the lower side and is required to be enhanced. It is lastly submitted that interest should be as per the repo rate prevailing.

7. As against this, learned counsel for the respondent submits that the quantum of compensation awarded by the Tribunal is just and proper and does not call for any interference of the Court.

8. The twin issues posed for our consideration are holding deceased to be co-author of the accident to the extent of 35% and compensation awarded more particularly non-grant of future loss of income.

9. The concept of contributory negligence has been time and again evolved, decided and discussed by the courts.

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 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.

11. The term contributory negligence has been discussed time and again a person who either contributes or is author of the accident would be liable for his contribution to the accident having taken place. The Apex Court in Pawan Kumar & Anr vs M/S Harkishan Dass Mohan Lal & Ors decided on 29 January, 2014 has held as follows:

“7. Where the plaintiff/claimant himself is found to be a party to the negligence the question of joint and several liability cannot arise and the plaintiff’s claim to the extent of his own negligence, as may be quantified, will have to be severed. In such a situation the plaintiff can only be held entitled to such part of damages/compensation that is not attributable to his own negligence. The above principle has been explained in T.