The main legal point established in the judgment is the determination of contributory negligence in a motor vehicle accident and the computation of compensation under the Motor Vehicle Act, 1988.

JUDGMENT :

Kaushal Jayendra Thaker, J.

1. Heard Sri R.K. Porwal, learned counsel for the appellant, Sri Satyam Jaiswal, learned Advocate, appearing for Sri A.C. Nigam, learned counsel for the respondent-National Insurance Company and perused the record.

2. This appeal, at the behest of the appellant-claimant, challenges the judgment and order dated 30.3.2001 passed by the Motor Accident Claims Tribunal/11th Additional District Judge, Kanpur Nagar (hereinafter referred to as 'Tribunal') in M.A.C. No.333 of 1992 rejecting the claim petition which was preferred by the appellant-claimant.

3. The facts as culled out from the record are that on 21.8.1992 at about 5.20 p.m., driver of a bus bearing No. UP 78 V1259 drove the bus rashly and negligently and when he reached the place near Vijay Nagar Crossroad, the bus ran over Anand Tiwari who died instantaneously. The deceased was 27 years of age at the time of accident. The deceased was conductor of vehicle bearing No. UP77/1912 owned by Jasveer Singh and was earning Rs.2,000/-per month and Rs.8,000/- was his income by selling milk. The deceased left behind him his parents, younger brother, his widow and three children. He was the sole bread earning person of his family. Respondent No.1 filed his reply which was one of denial and hold that the driver of the bus was not negligent. The Tribunal raised five issues but answer the same in the negative holding that the claimants did no prove that the driver of the bus was negligent.

4. At the outset, it is to be noted that the driver of the bus did not even step into the witness box. The Tribunal took a stand that it was not proved that the vehicle ran over the deceased. While relying on the decision of the Apex Court in State of Karnataka v. Satish, 2000 C.A.C. 408 SC, the Tribunal held that it was necessary for the claimants to prove the negligence of the driver. The Tribunal held that the witnesses did not narrate the correct story. The Tribunal has relied on the decision in United Insurance Co. Ltd. v. Anwari and others, 2000 (2) TAC 789 SC and has rejected the claim petition.

5. As far as issue of driving license is concerned, from the record which we have perused, it is clear that the driving license was filed which was the valid driving license but the Tribunal has held that the driving license was a xerox copy which cannot be accepted in evidence. While deciding the issue no.4, the Tribunal held that the matter is dismissed and, therefore, no amount can be paid.

6. Learned counsel for the appellant has submitted that the Tribunal has rejected the claim petition stating that the the claimant had failed to prove her case, and held that the accident occurred due to sole negligence of the deceased, this finding of the Tribunal is bad on the facts and law and requires to be upturned by this Court.

7. As against this, learned counsel for the respondent has submitted that the Tribunal has rightly dismissed the claim petition as there are contradictions in the statements of P.W.2 and P.W.3 and, therefore, they have been rightly not believed by the Tribunal. It is also submitted that the deceased was solely negligent for commission of accident and, therefore, the Tribunal has rightly rejected the claim petition.

8. Issues which are required to be adjudicated by us are (a) whether the Tribunal has rightly held the deceased to be solely negligent & whether the Tribunal can dismiss the claim petition on the basis that the scribe of F.I.R. was not examined on oath and that there are minor contradictions in testimony of P.W.2 & P.W.3; (b) if the dismissal is bad whether the matter be relegated to the Tribunal or compensation can be granted here.

9. 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.

10. The term negligence means failure t