JUDGMENT :

1. Heard Sri Anubhav Sinha, learned counsel for the appellant. None is present for the respondent.

2. This appeal, at the behest of M/s United India Insurance Company Limited challenges the judgment and award dated 31.5.1996 passed by VIth Additional District Judge/ Motor Accident Claims Tribunal, Etah in Claim Petition No.252 of 1995 whereby the learned Tribunal has awarded Rs.1,72,800/- as compensation with interest at the rate of 10% per annum with a direction upon the appellant herein to pay the above.

3. Be that as it may, as 27 years have elapsed, this Court deems it fit to decide this appeal where the Court had granted stay vide order dated 4.3.1997.

4. Brief facts as culled out from the record are that the respondent-injured Suresh Kumar along with one another person namely Jasveer Singh were traveling in the truck owned by respondent No.2 on the fateful day i.e. 27/28.7.1995. At about 3.00 a.m. in the morning, they were going to Ghaziabad after loading the goods in Tata 407 No. HR29A/9974 from Kashganj. The vehicle was driven by one Chhote Singh who drove the vehicle rashly and negligently. When the vehicle reached near Bulandshahr, at Sikadrabad-Delhi Road, the Tata 407 rammed into a stationery truck which injured the respondent and Jasveer Singh. From where both of them have rushed to Sikandrabad PHC. After being treated there for 24 hours, the injured was brought to Dr. Virendra Pal, the Orthopaedic surgeon who treated him.

5. On the claim petition being filed, the Insurance Company filed its reply which was one of denial they even denied that the vehicle was insured with it. The owner of the vehicle also filed reply which was also of denial but he has accepted that Suresh Kumar was an employee/cleaner and was being paid Rs.500/- per month. However, his permanent partial disablement as cleaner has been denied. They have contended that as the owner and Insurance Company of the other vehicle has not been joined as party, the claim petition would liable to be dismissed. The Tribunal framed issues and decided issue of negligence in favour claimant holding that driver of Tata 407 was negligent.

6. It is submitted by learned counsel for the appellant that the award is bad in the eye of law as the other vehicle's owner and Insurance Company has not been joined as party. It is further submitted that the finding of the Tribunal as far as issue of negligence is concerned is bad. It is further submitted that the quantum of compensation awarded by the Tribunal is also on the higher side and requires to be modified.

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 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 is co author of the accident would be liable for his contribution to the accident having taken place and that amount will be deducted from the compensation payable to him if he is injured and to legal representatives if he dies in the accident.

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