IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH FAO NUMBER 1236 OF 1997 DECIDED ON :23-12-2008 Surender Singh ....Appellant versus Sunil Kumar & others ....Respondents CORAM : HON'BLE MR.JUSTICE K KANNAN Present: Shri Surinder Gandhi, Advocate, for the appellant Shri Ravi Gupta, Advocate, for the respondents K KANNAN, J 1.The appellant seeks for enhancement of compensation against the award passed by the Motor Accident Claims Tribunal, Bhiwani, in MACT Case No.66 of 1994 granting Rs.10,000/-as the compensation payable, being 50% of Rs.20,000/-fixed as the amount payable for the injuries sustained in the motor accident. 2.The finding of contributory negligence was arrived at by the Tribunal on appreciation of evidence when the appellant himself had deposed that the collision of the scooter (on which he was riding) with respondent No.1's vehicle took place at the time when he was overtaking the camel cart and Ist respondent's vehicle coming from the opposite side struck him. It was also in evidence that the camel cart had been loaded with fodder and the visibility itself had been obstructed in some way and the accident would not have taken place, if the petitioner had himself exercised due care and caution in riding the scooter. On the peculiar facts and circumstances of the case, the Tribunal found that the appellant had contributed towards negligence in driving and apportioned the liability between the appellant and respondent No.1 in the ratio of 50 : 50. I do not find any other material than what was considered before the Tribunal and I affirm the finding with reference to apportionment of liability and the cause for the accident ,as has been dealt with by the Tribunal. 3.The crucial issue, however, is the subject of quantum of compensation which the trial Court assessed by stating that the doctor who had examined him found that he had sustained fracture in the femur right side. He had assessed it at 11% permanent disability due to restricted right knee joint movements and the difficulty that petitioner might have been squatting . The Tribunal assessed the compensation FAO 1236 of 1997 --2-- for pain and suffering at Rs.5000/- and Rs.15,000/-towards disability. The counsel for the appellant assailed the assessment specifically on the ground that the appellant had been admitted in the hospital for one and a half months and had remained in bed for 5 months. The appellant also contended that there had been an implant of plate through surgery and notwithstanding the fact that the appellant had not filed all the relevant medical records, the Tribunal ought to have taken note of treatment and medicines as administered through oral evidence and the complete non-consideration of the medical expenses and loss of income arising out of hospitalisation was grossly unjust. 4. I find that the Tribunal ought to have seen that the hospitalisation had not been denied anywhere in the cross examination. The appellant had given evidence to the effect that he was a milk vendor and an agriculturist and was earning Rs.5000/- per month. No other evidence was available. I assess the income at Rs.2500/-per month and the loss of income for one and a half months when he was in the hospital and for subsequent periods, I assess the loss at Rs.10,000/-. Having regard to the fact that there were no medical bills or prescriptions, having regarding to the evidence that he had suffered a fracture, I allow Rs.5000/-as the likely amount of medical expenses and also provide an additional sum of Rs.5000/-towards dietary charges and transportation. Having regard to the fact that the disability is assessed at 11% with difficulty in knee movements, I enhance the compensation for disability to Rs.22,000/- against Rs.15,000/-awarded by the Tribunal. I make no interference with the finding regarding the quantum of compensation for pain and suffering at Rs.5000/-. In all, the appellant would be entitled to a sum of Rs.10,000/-for loss of income +Rs.5000/-medical expenses+Rs.25000/-dietary charges+Rs.22,000/-towards permanent disability and Rs.2500 as towards transportation and in all Rs.47,000/-. Having regard to the fact that I uphold the finding of contributory negligence, the petitioner shall be entitled to half of the aggregate amount arrived as above viz. 1/2x47,000=Rs.23,500/- . The Tribunal has already awarded Rs.10,000/- and consequently the appellant would be entitled to an additional sum of Rs.13,500/-against the Insurance Company. 5.The award of the Motor Accident Claims Tribunal is, therefore, answered by additional sum of Rs.13,500/-with interest @7.5% per annum from the date of filing of the petition till realisation. 6.This appeal stands partly allowed in the above terms. Sd/-{K Kannan} Judge 23-12-2008