JUDGMENT

Dr. Kaushal Jayendra Thaker, J.

Heard Sri Mohan Srivastava, learned counsel for the appellant and Sri Sunil Kumar Misra, learned counsel for UPSRTC and perused the record.

2. This appeal challenges the award passed by the Motor Accident Claims Tribunal/Additional District Judge, Allahabad rejecting the claim petition being MACP No.304 of 1994 on 3.2.1997 preferred by the claimant Munni Devi and others but granted amount under the head of no fault liability only by holding that the deceased ( cyclist) was himself negligent in driving the cycle.

3. Brief facts as culled out from the record are that on 14.6.1994 at about 4:25 the deceased was plying his bicycle at that point of time the accident occurred. The deceased was going by his bicycle and the bicycle was being driven solely. The deceased was 19 years of age. The only surviving of his son, mother, and sister and brother who were younger to him. He was the sole breadwinner of his widow mother. The accident according to the claimants were due to rash and negligent driving of the driver of bus.

4. On being summoned before the Tribunal, the Uttar Pradesh Road Transport Corporation submits that the bus was being plied and the driver was at slow speed of 15 k.m. Per hour and when he reached place on his Muratganj there was a long queue of trucks and, therefore, very cautiously he was driving the bus and that point of time, the cyclist came and dashed with his and died on the spot.

5. Tribunal while considering these facts came to the conclusion that driver was driving the bus cautiously and that the deceased was plying from east to west and was driving the vehicle on the left side of the road. The deceased dashed with truck.

6. PW-2 has been disbelieved by the Tribunal who had in his ocular version supported the FIR lodged by him. His presence that being all eye witness has unfortunately not been believed.

7. On these facts, the evidence will have to be re-valuated and the fact that the deceased died on the spot will also have to looked into. The fact that driver of the bus who is the best witness has been accepted in totality without considering the facts of the case. The deceased was on a cycle. The impact is not discussed by the Tribunal if the bus was driving slowly the instantaneous death of young boy would not have occurred.

8. The charge sheet was laid against the driver of bus. If the vehicle was driven as slow speed as deposed even if we accept that cycle dashed on the front side of bus truck on the side the evidence of the witness (PW-2) namely driver, the impact will have to be visualized. The reason for not believing Raj Narayan who is an eye witness is also not discussed by the Tribunal. The evidence of driver Hausala Prasad who is interested witness and the best person to depose goes to show that the bus was not being driven at slow speed as conveyed. In this case it cannot be said that the deceased was the sole author of the accident. The accident having occurred and the fact that the deceased died on the spot showed the finding of fact that the cyclist was not totally negligent. The driver of bus has also contributed to the accident having taken place and he has contributed to the tune of 75% as he was driving the bigger vehicle, he had to more cautious. The deceased cannot be said to be a contributor to the accident having taken place to the tune of 25% negligent as per the principle laid down by the Apex Court for consider the negligent of the driver in motor vehicles cases.

9. The Division Bench of this Court in First Appeal From Order No. 1818 of 2012 (Bajaj Allianz General Insurance Co.Ltd. v. Smt. Renu Singh And Others) decided on 19.7.2016 has held as under :

"16. Negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a