JUDGMENT :

1. By way of this appeal, the U.P.S.R.T.C. has challenged the judgment and decree dated 5.2.1999 passed by Motor Accident Claims Tribunal/ VII-Additional District Judge, Jaunpur (hereinafter referred to as ‘Tribunal’) in M.A.C.P. No.9 of 1986 (Smt.Sushma Singh and others vs. UP State Road Transport Corporation) awarding sum of Rs.3,26,400/-as compensation to the claimants with interest at the rate of 10% per annum from the date of filing the claim petition.

2. Heard Mr.Dinkar Mani Tripathi, learned counsel for the U.P.S.R.T.C. and Mr.V.K. Chandel, learned counsel for the claimant-respondent No.1.

3. The brief facts of the case are that claimants filed Motor Accident Claim Petition before the Tribunal for claiming the compensation under Motor Vehicles Act, 1988 for the death of Harish Mohan Singh in a road accident with the averments that on 15.10.1995 at about 6.45 p.m., after discharging his duty, the deceased was going home, a bus of corporation bearing No.UTQ-4151 hit the deceased. In this accident, deceased sustained very serious injuries and died on the spot. The Tribunal considered the income of the deceased as Rs.2,400/-per month, deducted 1/3rd as personal expenses and applied multiplier of 17. Total compensation granted by the Tribunal is Rs.3,26,400/- with 10% rate of interest.

4. The appeal is preferred by the UPSRTC challenging the award of compensation passed in favour of the claimants. It would be worthwhile to mention that the claimants have also challenged the award by way of filing the cross-objection on the ground that the Tribunal did not consider the grant of future prospects though the deceased was 31 years of age and was a salaried person, namely, compensation was awarded on lower side.

5. The grounds raised by the appellant herein would first be required to be looked into as to whether the deceased died due to involvement of bus belonging to appellant was also liable for causing the accident as that is one of the grounds raised in the memo of appeal namely that the bus of the corporation was not involved in the accident on the alleged date of accident and/if the court comes to be conclusion that it was involved then 90% of negligence was that of the deceased in causing the accident as the deceased was negligently driving his scooter and that is how the accident occurred.

6. It is further submitted by counsel for appellant that evidence of PW-2 being heavily interested person has been placed reliance by the Tribunal whereas the testimony of driver of the bus, who is the best witness has been disbelieved. It is next submitted that the insurer and owner of the scooter had not been impleaded and, therefore, the award is bad. On compensation also, it is submitted that total compensation of Rs.3,26,400/-with multiplier of 17 is on the higher side. The interest at the rate of 10% is also on higher side.

7. While going through the record the submission that the vehicle was not involved in the accident cannot be accepted as the charge-sheet, FIR and the oral testimony of DW-1 belies this theory of the UPSRTC as to the involvement of the vehicle. This takes to the Court to the fact whether the accident occurred due to the contributory negligence or the sole negligence of the bus of the corporation.

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