JUDGMENT Hon’ble Dr. Kaushal Jayendra Thaker, J.—I have heard Sri S.K. Kakkar, learned counsel for the appellant. This is an appeal of the year 1994. The appeal was admitted in the year 1994 but the Court has not issued notice for a period of about 23 years and hence the same is taken up under Order 41 Rule 11 C.P.C. though it is an admitted appeal. 2. As per the judgment of the Apex Court in U.P.S.R.T.C. v. Km Mamta and others, AIR 2016 SCC 948, all the grounds raised in the appeal are required to be adjudicated and that is how I would go ahead with the discussion. 3. The Insurance Company has felt aggrieved by the judgment and decree passed in favour of the claimants allowing the claim petition to the tune of Rs. 3,13,000/- with interest at the rate of 12%. The driver driving vehcile of vehicle insured by appellant, has been held to have contributed 80% negligent in the accident having taken place and held liable to pay Rs. 2,30,400/- with interest. 4. The factual data is that on 19.8.1991 at about 2.15 p.m. an accident occurred between truck bearing No. UTS 841 and buses bearing No. UP-72/9614 and UP-72/9685. The claimant is the widow of the deceased Bhuvnesh Kumar and she represents minors five in number. Deceased Bhuvnesh Kumar was resident of Tehsil Bisauli, District Badaun and was doing his own business and was earning Rs. 2,100/- per month. He was 34 years of age at the time of accident. He was also selling oil. On the fateful day i.e. on 19.8.1991 when he was going for doing his business on his motorcycle, at about 2.15 in the afternoon when he was stationery, at that point of time a bus which was coming from behind dashed the motorcycle. He fell down from the motorcycle and the front vehicle of the bus run over him. One another bus bearing No. UP-72/9614 also came and ran over him and he died on the spot. 5. The respondents appeared before the Tribunal and filed their defence which was one of denial. The Insurance Company filed their reply of rebuttal. The Tribunal held the driver of the appellant’s insured vehicle to be 80% negligent. This has aggrieved the appellant. 6. I have heard Sri Kakkar, learned counsel for the appellant. 5. The respondents appeared before the Tribunal and filed their defence which was one of denial. The Insurance Company filed their reply of rebuttal. The Tribunal held the driver of the appellant’s insured vehicle to be 80% negligent. This has aggrieved the appellant. 6. I have heard Sri Kakkar, learned counsel for the appellant. The first ground of challenge is that the vehicle was being driven rashly and negligently by the deceased and he should have been held more liable. The issue of negligence will have to be decided on the touch stone of the principle enunciated by Apex Court. 7. Even if he pleaded the principle of negligence, 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. 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. 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. 9. 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. On these broad principles, the negligence of drivers is required to be assessed. 9. 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. 10. 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. 11. 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. 12. 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. 12. These provisions (sec.110A and sec.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. 13. 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 0 ACJ(SC) 1840). 14. 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 the other side. 15. The Tribunal in its well reasoned order after appreciating the facts has held that bus No. UP-72/9685 was the one which was liable. The respondent did not adduce any evidence. The documentary evidence showed that it was the composite negligence of drivers of bus No. UP-72/9614 and UP-72/9685 that is how the Tribunal decided the issue. 15. The Tribunal in its well reasoned order after appreciating the facts has held that bus No. UP-72/9685 was the one which was liable. The respondent did not adduce any evidence. The documentary evidence showed that it was the composite negligence of drivers of bus No. UP-72/9614 and UP-72/9685 that is how the Tribunal decided the issue. Whether it was apportioned or not is insignificant as qua the claimants it is a case of composite negligence as the deceased did not contribute to the accident having taken place. It is true that the Tribunal ought not to have apportioned the said accident. Hence, issue of contributory negligence is held against the Insurance Company. 16. It is submitted that there is breach of Section 147 of the Motor Vehicles Act,1988 (hereinafter referred to as ‘Act, 1988’) and for that the Insurance Company has examined a witness being DW-1 however, it is very clear that the officer who has opined only stated that the vehicle may not have been insured with the said branch. There is no categorical averment that the cover note No. 002338 was fake. The witness only stated and in his cross objection he has been ignorant about the fact from where and from which branch the said cover not was issued. The office did not belong to the place where the cover note was issued. The finding cannot be found fault with as it is finding of fact that the Insurance Company should have examined the person who was from the concerned branch and not having done so, the Tribunal has drawn an adverse inference. 17. The Apex Court in New India Insurance Company Limited v. Jugal Kishor, AIR 1988 SC 719 , has held that non production of policy by the Insurance Company will permit the Court to draw adverse inference. In this case it is not proved that the vehicle was not insured. It is only proved that the cover note was not issued by the particular branch. 18. In that view of the matter, the attitude of not filing policy of Insurance and or not being consistent with fulfilling its obligation to act fairly, the Insurance Company concerned if wishes to take a defence in a claim petition it has to prove the same. In this case, there is no such proof hence, the Insurance Company would be liable. In this case, there is no such proof hence, the Insurance Company would be liable. Section 147 of Act, 1988 reads as follows: “147 Requirements of policies and limits of liability. — (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which— (a) is issued by a person who is an authorised insurer; and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)— (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: Provided that a policy shall not be required— (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen’s Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee— (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. Explanation.—For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:— (a) save as provided in Clause (b), the amount of liability incurred; (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. (3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases. (4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe. (5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.” 19. This takes this Court to the issue of income. The Tribunal has not considered any amount towards future income. The Tribunal has in fact deducted certain amount. Hence, it cannot be said that judgment suffers from grant of higher compensation. 20. This takes this Court to the issue of income. The Tribunal has not considered any amount towards future income. The Tribunal has in fact deducted certain amount. Hence, it cannot be said that judgment suffers from grant of higher compensation. 20. It is true that the rate of interest granted is on higher side but having not granted any amount under the head of future income and having deducted only 1/3rd instead of 1/6th as per the decision of National Insurance Company Limited v. Pranay Sethi and others, 2017 0 Supreme (SC) 1050, I do not think that any interference is required in this matter. 21. Hence, this appeal sans merit and is dismissed. As there was stay granted, the same shall stand vacated forthwith. The amount be deposited forthwith if yet not deposited.