JUDGMENT KAUSHAL JAYENDRA THAKER, J. 1. Heard Sri Saurabh Srivastava for the appellant and learned counsels for the respondents. 2. Before adverting to the facts, it would be necessary to mention that the accident took place between the cyclist and tempo and the cyclist succumbed to the injuries. 3. The claimants filed the claim petition claiming compensation to the tune of Rs. 12,10,000/-. The Tribunal allowed M.A.C.P. No.451 of 2003 and awarded a sum of Rs. 4,39,000/- with interest @ 8 per cent. 4. Accident having occurred on 12.5.2003 is now not in dispute, death of Mohd. Yunus at 6.30 is also not in dispute, involvement of the other vehicle being Vikram UP-70-X-9743 is also not in dispute. The contention raised in the memo of appeal and as submitted by Sri Srivastava is that the deceased cyclist was himself negligent and it is submitted that the cyclist came on the wrong side and dashed with the tempo. It is further submitted that if this Court comes to the conclusion that the deceased was not solely negligent, he had contributed to the accident having taken place. 5. As far as the compensation awarded is concerned, it is submitted that the claimant did not prove that the deceased was earning Rs. 3,000/- per month and it erred in granting Rs. 70,000/- for the treatment of the deceased as the bills were not exhibited by the proper evidence. 6. The factual scenario goes to show that Ram Singh, who was the owner of the vehicle, has even denied the involvement of his vehicle. The vehicle was insured with United India Insurance company. No technical grounds are taken and, therefore, they have not been discussed. The principles for considering the issue of contributory negligence are as under:- 7. 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. 8. 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. 8. The contributory negligence has been discussed time and again a person who either contributes or author of the accident would be liable for his contribution to the accident having taken place. The Apex Court in Pawan Kumar & Anr vs M/S Harkishan Dass Mohan Lal & Ors decided on 29 January, 2014 has held as follows: 7. Where the plaintiff/claimant himself is found to be a party to the negligence the question of joint and several liability cannot arise and the plaintiff's claim to the extent of his own negligence, as may be quantified, will have to be severed. In such a situation the plaintiff can only be held entitled to such part of damages/compensation that is not attributable to his own negligence. The above principle has been explained in T.O. Anthony (supra) followed in K. Hemlatha & Ors. (supra). Paras 6 and 7 of T.O. Anthony (supra) which are relevant may be extracted hereinbelow: "6. "Composite negligence" refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence. 7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is, his contributory negligence. Therefore where the injured is himself partly liable, the principle of "composite negligence" will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error." 9. The Division Bench of this Court in First Appeal From Order No. 1818 of 2012 ( Bajaj Allianz General Insurance Co. Ltd. Vs. Smt. Renu Singh And Others) decided on 19.7.2016 which 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 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. 17. 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. 18. 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. 19. 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/s. Fletcher, 1868 3 HL(LR) 330. 19. 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/s. 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. 20. 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. 21. 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/s. State of Punjab, (2005) ACJ 1840 (SC)). 22. 22. 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." 10. In the F.I.R., name of the deceased and name of the driver has been written. The post mortem report shows that he had multiple injuries and the death occurred due to these multiple injuries. The version of PW-1, the widow of the deceased, is that the deceased was coming home from Hanumanganj at 6.30 a.m. and when he reached Habusa Mod, G.T. Road, vehicle, bearing UP-70-X-9743, came in a rash and negligent manner and dashed with the cycle. In the charge-sheet, the driver of the vehicle namely DW-1 has been mentioned and, therefore, the stand he has taken and the fact that he alleged that the driver had the audacity to contend that accident, did not take with his vehicle. He accepted that he was the driver of the said vehicle. Therefore, the involvement of his vehicle which has been denied has been proved. 11. The findings of fact are contributory negligence pleaded by the Insurance company which has gone against the Insurance. 12. It is submitted by Sri Srivastava, learned Advocate for the Insurance company, that when the cyclist was driving his cycle, he came on the wrong side and dashed with the tempo and that is how the accident occurred and, therefore, he was negligent as against this it is submitted by Sri Abhishek Kumar Jaiswal that even if we look into site plan and the place of accident and the vehicle involved in the accident, the cyclist can be considered that he was on correct side. The magnitude with which the accident occurred, is writ large. He has even invoked the principle res ipsa loquitur namely that Vikram tempo was driven by the driver rashly and negligently came and dashed Mohd. Yusuf, who after sometime succumbed to the injury. 13. However, the evidence is otherwise hence the submission of Sri Srivastava cannot be accepted as it is proved by cogent evident (i) that the F.I.R. was lodged against the driver of the offending vehicle. In his deposition, DW-1 has accepted that the charge-sheet is laid against him. He has accepted that he was the driver of the said vehicle. 13. However, the evidence is otherwise hence the submission of Sri Srivastava cannot be accepted as it is proved by cogent evident (i) that the F.I.R. was lodged against the driver of the offending vehicle. In his deposition, DW-1 has accepted that the charge-sheet is laid against him. He has accepted that he was the driver of the said vehicle. The Punchnama of the place also shows that the accident was authored by driver of the said vehicle. Hence, the death occurred due to negligent driving and there was no role played by the deceased and it cannot be said that he was the co-author of the accident. 14. It is contended by Sri Srivastava that the compensation awarded is on a higher side, his income could be considered to be Rs. 3,000/- per month and the multiplier is on higher side. It is further submitted that deduction of 1/3rd is also bad. As against this, learned counsel for the claimant - respondent has submitted that deduction of 1/3rd is also bad and is against the principles mentioned in Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another reported in, (2009) ACJ 1298. 15. The deceased was a tailor by profession. The accident occurred in the year 2003. The Tribunal has considered his income as Rs. 3,000/- per month and granted multiplier of 15 as he was 40 - 42 years of age. 1/3rd has been deducted and, therefore, the figure works out Rs. 24,000.00 x 15, which comes to Rs. 3,60,000.00. The said figure cannot be said to be bad or exorbitant as a skilled tailor would at least earn Rs. 3,000/- per moth. The Tribunal has not committed any mistake in the said calculation on the contrary no future income has been added and only Rs. 9,000/- has been added which is also less. 16. As far as the medical bills are concerned, the deceased was being treated in various hospitals and bills were produced which came to Rs. 70,000/-. 17. Thus, the submission of Sri Srivastava regarding compensation being on higher side is also rejected. The claimants have not filed the appeal for enhancement nor there is any request for enhancement. According to Sri Jaiswal even the interest is on the lower side. However, he does not claim any enhancement. 18. The appeal lacks merit and is dismissed. 19. 17. Thus, the submission of Sri Srivastava regarding compensation being on higher side is also rejected. The claimants have not filed the appeal for enhancement nor there is any request for enhancement. According to Sri Jaiswal even the interest is on the lower side. However, he does not claim any enhancement. 18. The appeal lacks merit and is dismissed. 19. Record and proceeding be sent back to the trial court. 20. This Court is thankful of both the counsels for getting this very old matter disposed of.