JUDGMENT :

Kaushal Jayendra Thaker, J.

Heard Sri Awadhesh Srivastva, learned counsel for the appellant, Sri Awadhesh Kumar Saxena, learned counsel for the respondent No. 1 and perused the record. None has appeared for respondent-Oriental Insurance Company.

2. This appeal, at the behest of the appellant-claimant, challenges the judgment and order dated 15.2.2001 passed by the Motor Accident Claims Tribunal, Bareilly (hereinafter referred to as 'Tribunal') in Claim Petition No. 614 of 1997 rejecting the claim petition which was preferred by the claimants claiming compensation of Rs. 4,02,000/-.

3. The facts as culled out from the record are that the appellant was 24 years of age at the time of accident and when he was waiting for bus, all of a sudden two vehicles namely Tanker bearing No. UP21/8155 and Bus of U.P.S.R.T.C. bearing No. UP 15/0631 coming from opposite directions dashed with each other. Because of the impact of the accident, the passengers in the bus fell on the appellant from the window/door which accidentally opened. The appellant was admitted into hospital. The F.I.R. was lodged by the driver of the U.P.S.R.T.C. The charge-sheet was laid against the driver of the tanker. The appellant claimed sum of Rs. 4,02,000/- with interest at the rate of 12% for the injuries he has sustained. The U.P.S.R.T.C. was arrayed as respondent No. 1 and respondent No. 2, is the insurer of tanker. They filed reply of denial of even the accident. The accident having taken place on 15.7.1997 at 8.30 p.m. is not disputed. Even in the finding of fact of the Tribunal goes to show that the accident took place. The Tribunal rejected the claim petition on the ground that the claimant was unable to prove that who was negligent.

4. Claim petition of the appellant came to be dismissed on the ground that the appellant was unable to prove the rash and negligent driving of the drivers though it was a case of composite negligence as far as deceased is concerned. He was pedestrian and not a person who was either driving the bus or the tanker. The F.I.R. was lodged by the officers of the U.P.S.R.T.C. and charge-sheet was submitted against the driver of the tanker. Learned counsel for the appellant has heavily relied on the decisions in Khenyei v. New India Assurance Co. Ltd., (2015) 9 SCC 273 and Kajal v. Jagdish Chand and others, (2020) 4 SCC 413.

5. As against this, learned Advocate representing U.P.S.R.T.C. states that the claim petition has been rightly dismissed as it is the duty of the petitioner to prove the negligence.

6. Looking to the factual data, it is transpired that two vehicles were involved in the accident. Neither of the drivers were deposed before the Tribunal. The claimant was a pedestrian and against him, it was a case of composite negligence as he was not the co-author of the accident having taken place. Decisions in Smt. Kaushnuma Begum and others v. The New India Assurance Co. Ltd., (2001) 2 SCC 9; Vimla Devi and others v. National Insurance Company Limited and others, 2019 (133) ALR 768; Anita Sharma v. New India Assurance Co. Ltd., (2021) 1 SCC 171, will not permit the Court to concur with the finding of facts of the Tribunal.

7. While dealing with submission on issue of negligence raised by the learned counsel for the appellant, it would be relevant to discuss the principles for deciding contributory negligence and for that the principles for considering negligence will also have to be looked into.

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 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