JUDGMENT Hon’ble Dr. Kaushal Jayendra Thaker, J.—This appeal under Section 173 of Motor Vehicle Act, 1988 (hereinafter referred to as the “Act, 1988”) at the instance of appellant-Insurance Company has arisen from judgment and award dated 31.5.1989 passed by Motor Accident Claim Tribunal-I Additional District Judge, Gorakhpur (hereinafter referred to as “Tribunal”) in Motor Accident Claim Petition No. 84 of 1985 filed by Smt. Asman and others v. Krishna Nand Pandey and others, whereby compensation of Rs. 72,000/- was awarded to claimants -respondents who has lost their only breadwinner. 2. The facts are ; the respondent No. 1 to 6 who are heirs of late Abdul Ali @ Laden. The claim petition was filed as the vehicle met with an accident and the deceased who was a non tortfeasor died in the accident on 115.1985. The deceased was in a Jeep which was insured with the appellant. The jeep and a bus collided with a bus and the deceased succumbed to the injury. The Tribunal after hearing the parties directed a compensation of Rs. 72,000/- to be paid jointly and severely by the tortfeasors. Out of this the appellant had to pay Rs. 36,000/- as a vehicle was insured with it. This is aggrieved the Insurance Company as according to them this was not a case of contributory negligence and there was breach of policy conditions as the vehicle was over loaded. 3. 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. 4. 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 prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which would be reasonably foreseen likely to caused physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, the negligence of drivers is required to be assessed. 5. It would be seen that burden of proof for contributory negligence on the part of deceased has to be discharged by the opponents. It is the duty of driver of the offending vehicle to explain the accident. It is well-settled law that at intersection where two roads cross each other, it is the duty of a fast moving vehicle to slow down and if driver did not slow down at intersection, but continued to proceed at a high speed without caring to notice that another vehicle was crossing, then the conduct of driver necessarily leads to conclusion that vehicle was being driven by him rashly as well as negligently. 6. 10th Schedule appended to Motor Vehicle Act contain statutory regulations for driving of motor vehicles which also form part of every Driving License. Clause-6 of such Regulation clearly directs that the driver of every motor vehicle to slow down vehicle at every intersection or junction of roads or at a turning of the road. It is also provided that driver of the vehicle should not enter intersection or junction of roads unless he makes sure that he would not thereby endanger any other person. Merely, because driver of the Truck was driving vehicle on the left side of road would not absolve him from his responsibility to slow down vehicle as he approaches intersection of roads, particularly when he could have easily seen, that the car over which deceased was riding, was approaching intersection. 7. In view of the fast and constantly increasing volume of traffic, motor vehicles upon roads may be regarded to some extent as coming within the principle of liability defined in Rylands v. Fletcher, (1868) 3 HL (LR) 330. 7. In view of the fast and constantly increasing volume of traffic, motor vehicles upon roads may be regarded to some extent as coming within the principle of liability defined in Rylands v. Fletcher, (1868) 3 HL (LR) 330. From the point of view of pedestrian, the roads of this country have been rendered by the use of motor vehicles, highly dangerous. ‘Hit and run’ cases where drivers of motor vehicles who have caused accidents, are unknown. In fact such cases are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist, whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if principle of social justice should have any meaning at all. 8. These provisions (Section 110A and Section 110B of Motor Act, 1988) are not merely procedural provisions. They substantively affect the rights of the parties. The right of action created by Fatal Accidents Act, 1855 was ‘new in its species, new in its quality, new in its principles. In every way it was new. The right given to legal representatives under Act, 1988 to file an application for compensation for death due to a motor vehicle accident is an enlarged one. This right cannot be hedged in by limitations of an action under Fatal Accidents Act, 1855. New situations and new dangers require new strategies and new remedies. 9. In the light of the above discussion, we are of the view that even if Courts may not by interpretation displace the principles of law which are considered to be well-settled and, therefore, Court cannot dispense with proof of negligence altogether in all cases of motor vehicle accidents, it is possible to develop the law further on the following lines; when a motor vehicle is being driven with reasonable care, it would ordinarily not meet with an accident and, therefore, rule of res-ipsa loquitor as a rule of evidence may be invoked in motor accident cases with greater frequency than in ordinary civil suits (per three-Judge Bench in Jacob Mathew v. State of Punjab, 2005 ACJ(SC) 1840). 10. 10. By the above process, the burden of proof may ordinarily be cast on the defendants in a motor accident claim petition to prove that motor vehicle was being driven with reasonable care or that there is equal negligence on the part of driver of another vehicle. 11. I have perused the judgment and I do not think that the driver of the bus was solely negligent. The finding of fact that both the drivers were negligent cannot be found fault with. 12. The submission is that Tribunal could not have fastened liability on the Insurance Company. The primary liability would be on driver and owner. The criteria of liability would be on owner and if they are held liable, then only Insurance Company can be directed to indemnify the owner. To this extent, findings are that driver was negligent. Involvement of vehicle is not disputed by Insurance Company. There is no breach of policy which has been alleged, in memo of appeal. It is case of Insurance Company namely that there were 15 passengers travelling in the vehicle which was insured with. The sole claim petition was filed for death and, therefore, this submission in the light of the decision of Apex Court in United India Insurance Company Ltd. v. KM. Poonam, JT 2011(3) SC 149. The Apex Court held as follows : “Insurance policy insuring jeep with a sitting capacity of six persons including driver. The said vehicle carrying 15 passengers fall into a ditch resulting into death and injury to passengers. The liability for other persons in excess of six passengers would be that of owner of the vehicle” 13. The liability of the insurer arises only when the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance Oriental Insurance Company Ltd. v. Sunita Rathi, AIR 1998 SC 257 . 14. No other submission is made. The compensation awarded cannot be said to be excessive. The quantum granted is on the conservative side, hence I do no think that this Court can be persuaded to take a different view then that taken by Tribunal. 15. Appeal is dismissed. 16. Amount of Rs. 25,000/-, deposited in the Registry, shall be remitted to Court below forthwith.