VENKATASWAMI, J. ( 1 ) THIS appeal under S. 110d of the Motor Vehicles Act, ]939 is by the unsuccessfur claimant in Mise. case No. 5 of 1971 on the file of the, Motor Accident claims Inounal, Bijapur District. ( 2 ) THE claimant (appellant) was a, student of B. Com. , class and was also employed appalently on a part-time basis as a clerk in some business firm. It would appear trial he was in the habit of visiting the samadhi oi one Pandit, which was situated on an approach road adjoining Bijapur-Gulbarga load. On 3-12-1970 the claimant was cycling along the said road at about 7~30. a. m. for the purpose oi vsting the said 'samadhi'. the metal or asphalted portion oi thai load used by Hie vehicales was about 10 fe. it in width. When he was cycling along that road on the leit side and when the concerned approacn road leading to the samadhi was still some way ahead he took a, turn to the light Side of the road, soon after a lorry passed him. Apparently he had not seen the but belonging to the Karnataka State Road transport Corporation (RSRTC) bearing MYF 5824. After he leached the right sidei of the road the bus in passing him is alleged to have brushed against the claimant, and stopped about 3 feet away from the place where he had falled. As a result of this accident the claimant received serioous lacerated wound on the left foot and sole. It was seen, after the, accident, that the chain oi the cycle of the claimant had snapped. The claimant was detained in the hospital as an inpaticut forn 3-12-1970 to 16-2-1971. In the course of his treatement several X-rays wore taken of the foot and it was seen that no fracture of the bone had occured. There were howeyer, 1 or 2 operations of skin grafting on the site of the injury. After he was discharged from the hospital on 10 -2-1971 he continued to attend the hospital for dressing for sometime thereafter, in view of these circumstances the claimani had to forego the taking oi his annual examination besides losing his part-time job for all these reason no preferced a claim for a, sum of rs. 8,715. After he was discharged from the hospital on 10 -2-1971 he continued to attend the hospital for dressing for sometime thereafter, in view of these circumstances the claimani had to forego the taking oi his annual examination besides losing his part-time job for all these reason no preferced a claim for a, sum of rs. 8,715. which was inclusive of the expenses incurred by him, compensation payable for pain and suffering and loss of remuneration on account of the loss of his job. lie, however, has claimed some compensation regarding his inability to take the annual examination also. ( 3 ) THE owner oi the bus, the Insurance Dept and the driver have resisted the claim before the Tribunal. Their case is that the accident was not the result of any negligent driving of the bus but, on the other hand, the claimant himsell fell oit his cycle and the injury was a result of such fall. It is also contended that the cyclist was clearly negligent in taking a, sudden turn to the right side of the road without properly looking behind for any other vehicle. The Iusurance Dept (KGld) asserted that the vehicle of the KSRTC had not been insured will it and therefore no liability could be foisted on it. The driver oi the vehicle also took the stand that neither he nor the vehicle was responsible for the accident. The Tribunal, after considering the facets and circumstances of the case, as disclosed by the evidence adduced, came to the conclusion that the injury caused to the claimant was not the result of any accident alising from the negligent driving of the bi's. It also concluded that the accident must haye taken place as alleged on behalf of the KSRTC and its driver, that is, that the claimant himself out of sheer fright must have fallen off his cycle resulting in the injury complained of, and not as a result of any grazing of any part of the bus against the leg of the claimant. The Tribunal, however, while examining the question of what may be regarded as contributory negligence by the claimant-cyclist, came to the conclusion that the claimant had contributed more to tha accident than the vehicle driven by the third respondent, in that he was not justified in taking a sudden turn to the right side at the spot of the accident without taking due precautions to watch for the other traffic on the road. It, therfore, rejected the claim of the claimant appellant. There is, however, not much discussion in the award under appeal, relative to the quantum oi compensation payable, to the claimant in the event of the acceptance of his claim for compensation. It is this award that is challenged in this appeal by the claimant. ( 4 ) BFEORE us the name of the third respondent, namely, the diiver, has been deleted from the record at the instance of the appellant. In so far as the other two respondents are concerned, they have not chosen to. get themselves represented in this appeal. Hence this appeal is disposed of after hearing the Counsel for the claimant-appellant alone. ( 5 ) ON behalf of the claimant, three witnesses have been examined. PW. 1 is a Doctor who has spoken to the circumstances restive to the treatment received by the claimant. He has also spoken to the, wound certificate. According to, him the injury received by the claimant was a case erf 'had laceration with aversion' which necessitated treatment for more than two months, which included grafting oi the skin removed from the thigh of the claimant. On a suggestion in cross-examination he has opined that the injury was not likely toi be caused by an accident such as the falling off from the cycle. He has also stated that the hqspitalisation of the claimant was ' absolutely necessary '. ( 6 ) THE second witness is the claimant himself. He has stated that the accident took place on the right side oi the road. It is also clear that ho had by then crossed the load to the right side and that some part of the front portion of tho bus dashed against him resulting in the injury complained of. He has also spoken to the fact of his employment as typist- cierk getting Rs. 135 per month. He has further averred that he has spent rs. He has also spoken to the fact of his employment as typist- cierk getting Rs. 135 per month. He has further averred that he has spent rs. 800 for the treatment of his injuries. He; admits that the chain of the cycle had snapped. He has further stated that in April, 1972 he could not get alternative employment after he was discharged from the service of his fcrmer employer as a result of his inability to attend to work on account of the injury suffered by him. In cross-examination of this witness it is elicited that the rqad at the point where the accident occurred was about 10 feet in widthi. ( 7 ) THE next witness is PW. 3 Murlidhar, a clerk under the employment of the business firm in which the claimant himself had been employed- he has spoken to the lact that the claimant was being paid Rs. 75 p. m. as salary apart from meeting other expenses regarding his education. In regard to the year 1969-70, with reference to the books produced by him, the witness has stated that a sum of Rs. 682 had been paid towards educutional expenses and Rs. 339 -37 towards his salary. He has also, spoken to viia fact that a sum of Rs. 306-76 had been paid to the claimant during the peroid between December 1970 and April 1971 to meet his medical expenses. This is all the evidence that has been adduced on behalf of the claimant. ( 8 ) ON behalf of the respondents, the driver of the vehicle MYF 5824 has been examined. His version is that he, was driving the bus on that day carefully and slowly enqugh while following the, truck. The claimant then who was parsing a,lo;ng the rqad on the, cycle, on the, left side of it, suddenly swerved to, the right side of the road soon after the, truck passed him. Thus, taken by surprise he applied the brakes of the bus and stopped within three feet from the place where the appellant-claimant had fallen. On getting down along with some, passengers he found that the, chain of the cycle had snapped and the claimant had sustained injury on his leg. He further states that no part of his bus touched the person of the claimant. On getting down along with some, passengers he found that the, chain of the cycle had snapped and the claimant had sustained injury on his leg. He further states that no part of his bus touched the person of the claimant. Further, significantly enough, he states that he, himself took the claimant to the hospital with the help of another bus which came along that road at the time. He also states that he was following the truck at a distance ol 15' to, 20' only. ( 9 ) ON an assessment of all the evidence adduced, the Tribunal has observed thus :"the driver, it appears had a look on the road and seeing the claimant-petitioner swerving the bicycle towards right had suddenly applied brakes, but unfortunately before it was brought to a, stand still it had knocked down the petitioner. As stated by the petitioner if the vehicle had dashed against him or his bicycle coming with speed of with severe force, then either the petitioner would have sustained injuries on the right side of his leg or other parts of the, body, or he would have been thrown off on the road with his bicycle. But admittedly, no such thing took place. On the qther hand, he, sustained injury on the other side of his body i. e. , on the left foot. In the circumstances, of the case, therefore the possibility of he, haying sustained that injury as a result of some, part of the bicycle coming in contact with that part of the body or some other object on the ground hitting against his left leg due: to fall, cannot be; ruled out. As suggested in the cross-examination of the claimant-petitioner the possibility of he being nervous and himself falling down from the bicyclej sustaining that injury even as a, result of the sudden breaking of the chain of the, bicycle cannot be ruled out. So, it appears the, driver could not be, blamed of any act of negligence or rashness on his part. . . . . In arriving at the above conclusion the Tribunal, in qur view, hag clearly over-looked certain facts available in the, evidence,. So, it appears the, driver could not be, blamed of any act of negligence or rashness on his part. . . . . In arriving at the above conclusion the Tribunal, in qur view, hag clearly over-looked certain facts available in the, evidence,. They are,: (i) that the, claimant had crossed over to the, right side; of the road before the accident occurred ; (ii) that bqth the bus and the, claimant were moving in the, same direction; and (iii) that the, accident occurred on the right side of the, road. It is plain to us from these circumstance that the, left side, of the; claimant's body was towards the bus and not the right side,. Therefore, tf the injury were to be found on the left leg of the claimant, it could be, clearly attributed to the grazing of some pant of the bus in question unless it can be shown that the claimant fell on his left side after the bus had passed him. It is seen from the evidence on record that the bus was stopped about 3 feet away from the. place of accident and that being sq he could not have fallen on his left side in such a short space of time as is expected! of a, bus to take, while covering a, distance of about 15 to 20 feet which was the, gap between the truck and the bus which was available t6 the claimant to take a, turn to, the right. We are conscious of the fact that it is possible, for a, cyclist situated as the claimant at thei time of accident was, to have fallen himself against the, bus out of fright or some sudden mishap to the cycle. But if really he had fallen as envisaged by us, it would not be a case of mere foot being injured, and in all probability the entire left side of his body would have suffered grievous injuries. We are, therefore, satisfied that the claimant did not fall off his cycle by himself as suggested on behalf of the defence, but that the accident must have happened as spoken to by the claimant himself by the grazing of some part of. the bus against his left foot. We are, therefore, satisfied that the claimant did not fall off his cycle by himself as suggested on behalf of the defence, but that the accident must have happened as spoken to by the claimant himself by the grazing of some part of. the bus against his left foot. In such a, situation the fact that the chain of the cycle had been snapped would not appear to, be of any consequence, as, in our view, if the bus had grazed the claimant on his left foot it must have affected the left pedal of the cycle also. It may be because of such an impact that the chain must have snapped. It is also significant in this connection to note the, concern betrayed by the driver after he found the claimant injured on tho road-side. If really his case was true it was no part of his duty to have requested the inmates of another bus to get down and take, the injured to the hospital at Bijapur. It seems to us that this conduct in some measure supports the case of the claimant that he was in fact hit by the bus moving in the same direction. We are not therefore in agreement with the reasoning and the conclusion of the Tribunal in the passage extracted above. The tribunal after concluding that the cyclist himself is to, be blamed for the accident observed thus in continuation of the passage reproduced earlier: further, as stated by the petitioner, if the driver was driving the vehicle, with more speed or without care and caution, then the accident would have been still more severe in nature than what it was. The claimant-petitioner might in all probability have been run over and crushed down under the heavy vehicle and not merely injured on the left side of the foot. Thus, from the evidence placed on the record, it appears to me that the negligence on the part of the claimant-petitioner himself has contributed more to the accident than the due care and caution on the part of the driver of the vehicle. "it. seems to us that the conclusion of the Tribunal as regards the contributory negligence on the part of the claimant is sound having regard to all the facts and circumstances of the case. "it. seems to us that the conclusion of the Tribunal as regards the contributory negligence on the part of the claimant is sound having regard to all the facts and circumstances of the case. It is clear from the evidence that the claimant who was going all along on the left side of the road suddenly swerved to the right side of it and, as soon as he reached the right side of the road, this accident took place. This circumstance would show that the claimant had hardly enough time and opportunity to take a turn to the right side of the road before he was hit by the bus. This circumstance would also probabalise the version of the driver of the bus that he was following a truck within 15 to 20 feet of it and he, had hardly time to apply the brakes to, avoid the accident. We are not inclined to accept the evidence of the claimant that he took a turn and he had looked behind and did not see any vehicle at a distance of about one furlong. If really this version was true, the bus could not. have reached the place of accident before he could swerve from the left side of the road to the right. It is therefore, to be inferred that be was negligent in taking a turn "as he did, which resulted in the accident. But that is not to say that the, driver of the bus should be completely exonerated from any blame. The fact that the cyclist was going along the right side of the road is no ground for a driver of a, bus to ignore the safety of other users of the road. It seems to, us that although he was able to stop the bus within a, distance of about 3 feet he should also have taken the precaution of not following the truck just within 15 or 20 feet of it. We are, therefore, clearly of the view that the driver of the bus had also contributed to the accident, by his negligence. ( 10 ) WE have earlier obferved that the Tribunal had not computed the compensation payable to the claimant in the, event of his success in the] claim. We are, therefore, clearly of the view that the driver of the bus had also contributed to the accident, by his negligence. ( 10 ) WE have earlier obferved that the Tribunal had not computed the compensation payable to the claimant in the, event of his success in the] claim. On behalf of the appellant, it is submitted by Shri S. D. Chhatre, learned Counsel, that this Court itself, on the evidence available, can determine the same without remitting the case, to the Tribunal for such determination. We therefore, proceed to determine the compensation payable It is in evidence that the claimant was drawing a salary of Rs. 75 p. m. from his part-time job There is also some evidence to show that even after the accident between the months of December, 1970 and April 1971 some amounts have been disbursed by has employer, apparently to meet his medical evpenses We shall however take no account of it as the witness who has spoken to this fact is lather vague on the point that such sum had been paid as salary and not as an advance to bo recovered later as a, debt. It is also in evidence that the claimant secured alternative employment in april 1p72 with the Canara Bank There is also some material to show that the claimant had to attend the hospital even after his discharge for the purpose of dressing of his wounds It is therefore reasonable to presume that the claimantt had been deprived of the opportunity to earn in his then employment for a period of about six months from 3-12-1971. We say so only because there is no material to show that the claimant made any sincere or honest attempt to secure alternative employment throughout the period betveen he date of his discharge and the date of his re-employment in april 1972 Wo are, therefore, of the view that the claimant should be compensated far the loss caused on account of non-receipt of his salary This sum would accrue to a sum of Rs. 450. ( 11 ) THE next, item relates to the amount expanded by him towards medical terminate 'ihe claiment has swom to the fact that he had rpent rs. 300 on the sould , It is difficult to accept the version of the claimant that the Vouchers support of suchan expence had been lost. 450. ( 11 ) THE next, item relates to the amount expanded by him towards medical terminate 'ihe claiment has swom to the fact that he had rpent rs. 300 on the sould , It is difficult to accept the version of the claimant that the Vouchers support of suchan expence had been lost. However, it court he desied that be must have spent some amount towards his treatment Having regard to the period and the mture of the treatment undergone by him, we think it resnable to determine the same at half the amount claimed by him This amount would be Rs 400 ( 12 ) IT from the evidence whether the claiment had claimed any specific amount on account of pain and suffering undergone by been on account of the accident In our judgement, any determination of the loss on this account is more or less conlectural in charectore. Although on the claim application the petitioner has claimmed a sum of Rs 5 000 under this head he had state nothing about it in the evidence All the same, we and of the view that it cainot he gainsaid that when a person undergoes hospitalisation for a period of 2-'record accomianied withn grating, he would have undergere mental agonyy and physical suffring. Having regard to all those circumetaness, we think a notional sin of: rs. 500 should be awarded under this bead. ( 13 ) BUT the above conclusion cf ours relative to the quantum of compensation is not conclusive of the question arising before us. Wt have already pointed out that the accident was a result of negligence, contributed by both the parties. It is well-setted that in a, case for damages where it is found that the claimant or the plaintiff had contributed to the accident, such a, circumstancel should go in mitigation of the damages payable as compensation to him. It is also well settled that if an apportionment of compensation involving contributory negligence is impossible, on the material placed before the. Court, the plaintiff should fail. This is the position emanating from the common law of England and followed in O|ur country, before the enactment of Law Reform (Contributory Negligence) Act of 1945 by the 'parliament of United Kingdom. In so far as the, law in india, is concerned no enactment similar to the aforesaid one has been brought to our notice. This is the position emanating from the common law of England and followed in O|ur country, before the enactment of Law Reform (Contributory Negligence) Act of 1945 by the 'parliament of United Kingdom. In so far as the, law in india, is concerned no enactment similar to the aforesaid one has been brought to our notice. However, it is sufficient to refer to an enunciation. in Nani Bala v. Auckland Jute Co. , AIR 1925 Cal. 893. which sets out, in our view, if we may say so with respect, the correct position in regard to apportionment of compensation in cases involving contributory negligence. The, passage runs thus," Now, the doctrine of contributory negligence is well settled, although the meaning of the term not infrequently is clouded by the language in which the doctrine is couched. Where thq negligence qf the plaintiff, or that of the defendant is the sole cause of the accident the matter is free from doubt. But difficulty may arise where the accident is caused partly by the negligence of the plaintiff and partly by that of the defendant. In such circumstance it becomes the duty of the Court to endeavour to ascertain whether the negligent act or omission of the plaintiff, or that of tha defendant was the cause of the accident. If the Court finds itself unable to discover to what extent the negligence of the plaintiff or that of defendant contributed to bring about the accident, the defendant is entitled to succeed for in pari delicto potior est condition defendentis. On the other hand, "though the plaintiff may have been guilty of negligence, and although that negligence may, in fact, have contributed to the Accident, yet if the defendant could, in the result by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff's negligence will not excuse him", (per Lord penzance, Radley v. L and N W Railway Co. " ( 14 ) COMING now to the facts of the instant case we are of the view that both the driver of the bus and the claimant have equally contributed to the Accident by their negligence The compensation payable to the claimant and computed as above has to be reduced by 50% (half ). The aggregate amount of compensation arrived at earlier is Rs. 1,350 and half of that sum would be Rs. 675. The aggregate amount of compensation arrived at earlier is Rs. 1,350 and half of that sum would be Rs. 675. The claimant is entitled to this sum (Rs. 675 ). ( 15 ) AS a result of the above discussion, the appeal is partly allowed to the exrtent indicated above. It is now conceded that the Govt Insurance dept (2nd respondent before the Tribunal) would not be liable as the vehicle in question had not been insured with it. We have earlier observed that the third respondent, driver, had been given up by the claimant-appellant. Therefore, there will be an award in a sum of Rs. 675 only, with interest at 6% per annum computetd on the said sum fqr the period between the date of the application (15-4-1971) and the date of payment. In view of the circumstances pointed out by us, this amount shall be, payable, by the first respondent-KSRTC only. ( 16 ) AS regards costs, we, think it proper to, direct the, parties to bear their own costs throughout. --- *** --- .