JUDGMENT R.D. Shukla, J. 1. This appeal is directed against the judgment and Award dated 31.3.1983 of the Motor Accidents Claims Tribunal, Ujjain passed in Claim Case No. 10/80 whereby the Claimant-appellant's petition for award of compensation has been dismissed. 2. The brief history of the case is that the Claimant-appellant filed a petition before the Tribunal on 8.4.1980 with the assertions that on 13.10.1979 at about 11 a.m. he was going on a bicycle and moving as such on Ujjain Kothi Road near Ramkrishan Colony and was proceeding from Ujjain city to Rishinagar. Meanwhile an Ambassador Car M.P.M. 2375 owned by respondent No. 1 and driven by respondent No. 2 came from behind and gave a dash to his bicycle. The Claimant fell down and became unconscious, sustained injuries at the chin, hand and leg, his right leg was fractured at three places. He had to remain in the hospital for about 40 days and further under plaster for about four months. 3. The Claimant has sustained permanent partial disability and still feeling difficulty in walking. The chin area has become so tender that it is causing difficulty is shaving. 4. The Claimant further asserted that he was a student of final year of Mechanical Engineering of Polytechnic College. He had to forgo his studies for one year. He was earning nearly Rs. 300/- per month from private tuition. He sustained loss for the same. As such, the Claimant prayed for compensation as follows: (i) Pain and suffering and future loss because of permanent partial disability - Rs. 23,600/- (ii) Expenses for medicine towards fee, special the for about 6 month - Rs. 4,000/- (iii) Expenses for studies - Rs. 2,400/- (iv) Loss of earning for a year - Rs. 4,800/- (v) Loss of tuition of 5 months - Rs. 1,500/- (vi) Loss of cloths - Rs. 200/- (vii) Loss of watch - Rs. 150/- (viii) Loss of bicycle - Rs. 300/- (ix) Notice charges - Rs. 50/- (Total Rs. 37,000/-). 5. The vehicle was insured with respondent No. 3. The Claimant being a third party, the Insurance Co., is liable to make all payments. 6. The respondents No. 1 to 3 filed separate replies to the Claim petition. Respondent Nos. 150/- (viii) Loss of bicycle - Rs. 300/- (ix) Notice charges - Rs. 50/- (Total Rs. 37,000/-). 5. The vehicle was insured with respondent No. 3. The Claimant being a third party, the Insurance Co., is liable to make all payments. 6. The respondents No. 1 to 3 filed separate replies to the Claim petition. Respondent Nos. 1 and 2 Claimed that the Claimant himself was responsible for the accident as he was coming behind the truck by catching hold the iron chain fixed in the rear portion of the truck. The truck-driver applied sudden brake to the truck. It created a jerk to the Claimant who lost the balance of his bicycle and came in front of the motorcar all of a sudden. It was also asserted that the truck was coming from the opposite direction. The accident happened while the motor-car was passing by the side of the motor-truck. 7. It was also pleaded that the Claimant dashed against the bonnet of the motor-car and jumped over it and dashed against the windscreen. As a result the windscreen was broken and some marks on the bonnet were also caused. 8. The respondent No. 3 also supported the contention of respondents No. 1 and 2 and pleaded for the limited liability. 9. Learned Tribunal after recording the evidence adduced by the parties found that the accident did not occur because of the negligence of respondent No. 2-driver, though the Claimant sustained injuries but he was not entitled for any compensation as he himself was responsible for the accident. Hence this appeal. 10. In the memo of appeal and during the course of arguments, learned Counsel for the appellant has submitted that the finding of the learned Tribunal is per-verse as the respondent No. 2-driver failed to prove his assertion-that the FIR though not proved formally could be taken into consideration and that corroborates the story disclosed by the Claimant. In the alternative it was also submitted that if the Claimant is held partially responsible for the accident and is made liable for contributory negligence the compensation could be reduced to the extent of contribution and the rest of the amount could be awarded to the Claimant. 11. In the alternative it was also submitted that if the Claimant is held partially responsible for the accident and is made liable for contributory negligence the compensation could be reduced to the extent of contribution and the rest of the amount could be awarded to the Claimant. 11. As against it, learned Counsel for respondents have submitted that the Claimant was wholly responsible for the accident and that once having been failed in proving his assertions, he cannot take advantage of the principle of contributory negligence. 12. The Claimant has examined himself as AW-5 to prove the fact of accident, AW-2 Dr. Rakesh Agarwal and AW-6 Dr. N.K. Saraf for proving the injuries sustained by him. He has further examined AW-1 Ramkrishna Joshi, AW-3 Dilip Joshi to prove the fact of loss of studies and AW-4 Surendrasingh to prove the earning by way of private tuition. 13. AW-1 Ramkrishna Joshi, a teacher of the college, has proved that the Claimant was studying in the third year and the examination was to start from 5.4.1980 and the last date for filling the form was 20th February, 1980. The Claimant had to appear in the examination next year i.e. in April, 1981. AW-2 Dr. Rakesh Agarwal and AW-6 Dr. N.K. Saraf have proved the injuries. Dr. Agarwal has stated that he has examined the Claimant on 13.10.1979 and found fracture of tibia and fibula on the upper end. He repaired the wound and put plaster on it. He has further stated that Claimant remained in hospital upto 24.11.1979 and must have taken more than three months in recovery thereafter. He has also stated that the Claimant is limping slightly and feels difficulty in walking and the same disability is estimated to the tune of 10% to 15%. 14. Dr. N.K. Saraf has stated that he examined the Claimant on 13.10.1979 at 11.45 A.M. and found.-- (1) Injury and swelling 6" x 6" on the right thigh. Crepitation present; suspected multiple fracture of the femur; (2) Lacerated wound 4" x 1" bone deep, below the front of the right knee; suspected fracture of right tibia and fibula; (3) Multiple abrasions all over the back, Upper arm and both lower limbs; (4) Lacerated wound 1" x 1/4" on right side of the chin. 15. Crepitation present; suspected multiple fracture of the femur; (2) Lacerated wound 4" x 1" bone deep, below the front of the right knee; suspected fracture of right tibia and fibula; (3) Multiple abrasions all over the back, Upper arm and both lower limbs; (4) Lacerated wound 1" x 1/4" on right side of the chin. 15. Thus, the fact of accident and the injuries sustained by the Claimant including the loss of studies, pain, suffering, treatment in the hospital and remaining under plaster thereafter, has been amply proved by the Claimant. 16. Now so far as the fact of negligence and the responsibility of respondent No. 2 driver-K.R. Nair regarding the accident is concerned, the Claimant had examined himself alone. He has supported the assertions made by him in the Claim petition. It appears that he has filed a certified copy of F.I.R. which has not been formally proved. That was lodged by one Vahid Rehman. It contains a recitation that the white motor-car was coming from behind and dashed its front wheel on the bicycle of Claimant. The Claimant fell down and sustained various injuries. Vahid Rehman took the Claimant to the Police Station in a motor-tempo. This Vahid Rehman was not examined to support the contention. 17. As against it the respondent No. 2 appearing as D. W. 2 has stated that the truck was coming from opposite direction. The Claimant was following the truck. The truck-driver while passing by the side of motor-car driven by this witness, suddenly applied the brake. The Claimant all of a sudden came from behind the truck and dashed against the windscreen and fell down by the side of car. 18. He has not stated anything regarding the fact of Claimant having caught hold of the chain over hanging on the rear portion of the truck. In the cross-examination, he has further stated that he could not see as to whether the Claimant sustained any jerk from the truck which was suddenly stopped. He has also not seen this Claimant having caught hold of the chain over hanging on the rear portion of the truck. Thus there appears to be variance in the pleading and proof of this witness. 19. G.S. Saxena appearing as NAW-1 has stated that he was sitting on the rear portion of the car. The truck was coming from opposite direction. He saw some boys following the truck. Thus there appears to be variance in the pleading and proof of this witness. 19. G.S. Saxena appearing as NAW-1 has stated that he was sitting on the rear portion of the car. The truck was coming from opposite direction. He saw some boys following the truck. When both the vehicles were passing by the side of each other this Claimant all of a sudden came in front of the car and dashed over the windscreen. His cycle was damaged. He (Claimant) become unconscious. He was taken to the hospital. He has denied the fact of motor-car dashing from behind and further stated in paragraph 5 of his statement that he was coming by holding the chain over-hanging on the rear portion of the truck. He has also stated having made the report to the police. He has further tried to confirm in paragraph 9 of his statement that he saw somebody leaving the chain when the truck happened to pass by the side of the car. 20. This witness was sitting on the back portion of the car. NAW-2 K.R. Nair was driving the vehicle. He had better opportunity of having a look on the road and the traffic there on. He has not seen the boy who was following the motor-truck. He has further admitted in paragraph 7 of his statement that since the Claimant all of a sudden came in front of the car and therefore, he assumed that the Claimant was following the motor-truck. Thus, there is a variance between the statement of driver - K.R. Nair and NAW-1 G.K. Saxena. 21. On critical examination of the evidence adduced by the parties the fact of car dashing the Claimant from behind does not appear to be correct as in that position the Claimant must have been thrown a few steps ahead on the car and on the road. Thus, this contention of the respondent appears to be correct that there was head on colluision and the Claimant dashed against the bonnet and probably jumped over it and further dashed against the windscreen and thereafter fell down by the side of the car. Thus, the story disclosed by the Claimant has rightly been disbelieved but the respondents have also not been successful in demonstrating and proving the circumstances of the accident pleaded by them. 22. Thus, the story disclosed by the Claimant has rightly been disbelieved but the respondents have also not been successful in demonstrating and proving the circumstances of the accident pleaded by them. 22. NAW-2 K.R. Nair, the driver of the vehicle, did not mark the Claimant or other boys following the truck while NAW-1 G.K. Saxena had stated about that. Thus, the driver was not vigilant and was not keeping an eye over the driver coming from the front side and the pedestrians and cyclists following the motor-truck. This assertion of the respondents also cannot be accepted that the Claimant had caught-hold of the chain over hanging on the rear side of the truck. 23. The driver has nowhere stated that while passing by the side of the motor-truck he had blown the horn so that the persons-cyclists, scooterists following the truck may know about the vehicle approaching from opposite direction and by the side of the motor-truck as the persons following the truck must have been over shadowed and could not have seen the motor-car immediately passing by the side of the motor-trucks. 24. Though it is the duty of the persons following in by-cycle or motor-cycle a heavy vehicle like truck to remain vigilant about the other motor-vehicle coming from behind or from opposite direction and further about the passing of the motor vehicle by the side of such heavy vehicle. It appears that the motor-driver was not watchful about the persons and the cyclists following the motor-truck and similarly the persons following the motor-truck like the Claimant were also not vigilant about other vehicle coming and passing by the side of the truck. 25. It may not be out of place to mention here that according to NAW-1 G.K. Saxena the incident was reported to Police by him also but the same has not been produced in the Court. That also goes to show that the report of the incident was not in favour of the respondents. 26. Thus, in the opinion of this Court the driver was negligent by not keeping proper watch over the road and the traffic including pedestrian and cyclists and the present Claimant was also responsible for coming in front of the motor-truck suddenly. That also goes to show that the report of the incident was not in favour of the respondents. 26. Thus, in the opinion of this Court the driver was negligent by not keeping proper watch over the road and the traffic including pedestrian and cyclists and the present Claimant was also responsible for coming in front of the motor-truck suddenly. Hence both--motor driver and the cyclist (Claimant) were equally responsible for the accident and therefore, it will be deemed that Claimant contributed to the accident to the extent of 50% and 50% responsibility of the accident was that of the driver NAW-2 K.R. Nair. 27. In such a situation the respondents shall be liable to pay at least 50% of the compensation awardable to the Claimant. 28. The Claimant has filed 36 receipts showing the payments of medicines the total of it comes to Rs. 410.13 Ps., which may be rounded as Rs. 410.00. These receipts have not been firmly proved but while assessing the special damage including the cost of medicines and other treatment this can be taken into consideration even without formal proof. 29. The Claimant was in the hospital for more than a month and thereafter remained under plaster for about three months. Thus, he has suffered the pain and agony for four months. It can be assumed from the practical experience that he must have taken special the t during that period. The accident occurred in the year 1979. The consumer articles were slightly cheaper at that time. Hence Rs. 10/- per day as special the t may be taken to be the proper amount for the same, and that comes to nearly Rs. 1,200/-. 30. The Claimant has, though examined one Surendra Singh (AW-4) to show that the Claimant was earning nearly Rs. 150/- per month from private tuition but no receipt for the same has been filed. He himself was a labour in the Mill and, therefore, that fact cannot be accepted. It has also not been proved that the Claimant was a self-supporting man and was studying without any help from his parents and therefore the fact of loss of earning for that period cannot be accepted. 31. The Claimant has been successful in proving the loss of one academic year (from the statement of AW-1 and AW-3) as he could not appear in the examination because of the accident. 31. The Claimant has been successful in proving the loss of one academic year (from the statement of AW-1 and AW-3) as he could not appear in the examination because of the accident. That loss can be estimated @ Rs. 200/- per month, the same being necessary expenditure for fee and other expenses for the studies. Thus, in the opinion of this Court, therefore, the Claimant is entitled to a compensation for pain and suffering to the tune of Rs. 2,000/- and Rs. 2,400/- for the loss of studies. 32. -AW-2 Dr. Rakesh Agarwal has stated that the Claimant has developed weakness and difficulty in walking, he is limping and the disability has been assessed-to the extent of 10% to 15%. The Claimant is a student of Polytechnic College and because of this weakness his future earnings would be affected. The Graduates of Polytechnic are generally appointed as overseers and sub-engineers. In the year 1979 their income may be taken to Rs. 600/- to 700/- per month and if the loss is estimated @ Rs. 100/- per month with a multiplier of 15 then it would come to Rs. 18,000/- (this amount would fetch an interest of nearly Rs. 180/- per month). Thus, the total loss comes to Rs. 24,010/- which may be rounded about Rs. 24,000/-. 33. Learned Tribunal has estimated loss to the tune of Rs. 5,000/- only but as is evident from the estimates above, that does not appear to be correct. Since the Claimant was also 50% responsible for the accident and has contributed for the same to that extent, he is, therefore entitled for a compensation of Rs. 12,000/- only. 34. The Claimant has prayed for the compensation of loss of cloth, watch and bicycle. But there is no proof regarding loss of cloth and watch; however he has stated about the damage to cycle, the same has been indirectly admittedly by N. A.'s witness as well. Hence damage to cycle and loss to it which may be estimated to-be Rs. 200/- stands proved, he is entitled for half of that amount also. 35. As a result the appeal partly succeeds and that Claimant is awarded Rs. 12,100/- as compensation with simple interest @ 9% per annum (as the accident occurred before the amendment in the Motor Vehicles Act in 1982) from the date of Claim petition till realisation of the amount. Counsel fee Rs. 35. As a result the appeal partly succeeds and that Claimant is awarded Rs. 12,100/- as compensation with simple interest @ 9% per annum (as the accident occurred before the amendment in the Motor Vehicles Act in 1982) from the date of Claim petition till realisation of the amount. Counsel fee Rs. 400/- if certified.