JUDGMENT : G.D. Saxena, J. - Having been dissatisfied with the Award dated 30th April 2004 in Claim Case No. 46/2004 passed by the Tenth Additional Member of the Motor Accident Claims Tribunal Gwalior (M.P.), this appeal under Section 173 of the Motor Vehicles Act 1988 has been preferred by the claimant/appellant, seeking enhancement of the amount of compensation to the extent of Rs. 1,00,000/-. 2 Admitted facts of the case are that on 25th August 2002, the injured/claimant was travelling in a bus driven by respondent No.1, owned by the State Road Transport Corporation from Bhind to Gwalior. He was sitting on the 2 Misc. Appeal 704/04 seat by the window side, just behind the conductor's seat. It is stated near village Pindora, the claimant stood up for splitting the tobacco chewing from window and so his elbow was outside the window. Since the driver was driving the bus in a high speed, resultantly when another truck passed through the same directions, the appellant's elbow came into contact with the body of that truck and was badly injured. The F.I.R. was lodged in Police Station and after investigation the charge-sheet was filed before the criminal court. The injured was a casual skilled labourer in masonry side and was earning Rs. 4500/- monthly. Due to compound fracture in his elbow, he became unable to perform his work and earn. Under these circumstances, by submitting a claim petition, he claimed Rs. 8,50,000/- as compensation for the injuries received in the incident against the respondents. After recording the evidence and hearing the parties, the learned tribunal awarded a sum of Rs. 44,000/- by way of compensation to the claimant. Being aggrieved, this appeal has been submitted. 3. The submission put forth on behalf of the appellant is that the learned tribunal awarded the claim in all heads on lower side, hence, same is liable to be enhanced up to the limit of Rs. 1,00,000/-. It is pointed out that the learned tribunal has awarded Rs. 15,000/- under head of medical expenses which being on lower side is required to be enhanced up to Rs. 20,000/-. It is further submitted that due to injury caused, the claimant could not earn for four months, so he suffered loss of his regular income during the period of treatment. Considering this, loss of income during period of treatment should be enhanced to Rs. 30,000/-. 20,000/-. It is further submitted that due to injury caused, the claimant could not earn for four months, so he suffered loss of his regular income during the period of treatment. Considering this, loss of income during period of treatment should be enhanced to Rs. 30,000/-. So also the amount of compensation awarded against pain and suffering and trauma should be enhanced up to Rs. 20,000/-. The compensation of Rs. 30,000/- against transportation charges from hospitals to home including nursing charges and special diet further deserves to be awarded. Apart from above, the rate of interest on awarded compensation, according to the claimant should also be enhanced like the bank rate on the deposits, which was payable by the Nationalized Banks to their depositors and was prevailing at the time of award. On the basis of these arguments, it is prayed that by allowing the appeal, the Award under appeal may be enhanced up to limit of Rs. 1,00,000/- against the respondents, on the basis of joint and several liability. (4) Learned counsel appearing on behalf of the respondents No.2 and 3 though admitted the accident as well as injuries caused to the injured in accident, but opposed the prayer of enhancement of compensation and prayed that the compensation as awarded being adequate looking to the nature of injuries, the appeal-seeking enhancement of the award deserves to be dismissed. (5) Heard the learned counsel for the parties. Also perused the record of the tribunal. (6) Before proceeding to determine as to what should be just amount of compensation in the light of the nature of injuries received by the appellant, this court may deal with one of the questions raised, namely, whether it will be permissible to make an award in excess of the amount as claimed in the appeal. (7) Injured Govindram (AW-1) deposed that on 25th August, 2002, he was coming in a Roadways bus No. MP09/S-0264 from Bhind to Gwalior. He was sitting towards window side just behind the conductor's seat. The driver of the bus was driving the vehicle in hectic speed, resultantly, when the bus crossed village Pidora, he met with an accident in which his left hand was fractured. He was then taken to district Hospital at Bhind where he remained admitted for three days. The x-ray of the left hand was taken and the plaster was applied. The driver of the bus was driving the vehicle in hectic speed, resultantly, when the bus crossed village Pidora, he met with an accident in which his left hand was fractured. He was then taken to district Hospital at Bhind where he remained admitted for three days. The x-ray of the left hand was taken and the plaster was applied. From Bhind Hospital he was referred to J.A. Hospital. Thereafter, the claimant was admitted in private Nursing Home of Dr. Dubey. During treatment, the claimant borne expenses up to Rs. 45,000/-. He deposed in his evidence that by doing RCC scenting works, he used to earn Rs. 150/- per day but after accident he was unable to earn the money. He steel feels pains in moving the hand and in lifting the weight. (8) Dr. A.K. Dubey (AW-2) deposed on 24th November, 2002, the claimant was admitted in his Nursing Home. On examining the claimant, he found that lower 1/3rd of the humerus bone of his hand was fractured. After operation, a rod was fixed in the hand. He stated that the claimant thereafter came to him for treatment and advice on several days. He further admitted that after removal of the rod, the pain may be or may not be subsided. (9) On considering the aforesaid evidence, the learned trial court awarded compensation to the extent of 5 Misc. Appeal 704/04 Rs. 44,000/- in all heads to the claimant which as per the learned counsel for the appellant is not just and fair. It is submitted that expenses under the heads of treatment, hospitalisation, medicines, nourishing food including damages for pain, suffering and trauma as a consequence of the injuries, ought to have been awarded by the learned tribunal. (10) In Mohan Soni Vs. Ram Avtar Tomar, (2012) 2 SCC 267 , at page 270: the Hon. Apex Court has observed as follows :- “8. On hearing the counsel for the parties and on going through the materials on record, we are of the view that both the Tribunal and the High Court were in error in pegging down the disability of the appellant to 50% with reference to Schedule I of the Workmen’s Compensation Act, 1923. On hearing the counsel for the parties and on going through the materials on record, we are of the view that both the Tribunal and the High Court were in error in pegging down the disability of the appellant to 50% with reference to Schedule I of the Workmen’s Compensation Act, 1923. In the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. This is the basic premise and once that is grasped, it clearly follows that the same injury or loss may affect two different persons in different ways. Take the case of a marginal farmer who does his cultivation work himself and ploughs his land with his own two hands; or the puller of a cycle-rickshaw, one of the main means of transport in hundreds of small towns all over the country. The loss of one of the legs either to the marginal farmer or the cycle-rickshaw-puller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged in some kind of desk work in an office, the loss of a leg may not have the same effect. The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effects on one’s personal, family or social life but the loss of one of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cyclerickshaw- puller. 9. The question of loss of earning capacity resulting from amputation of one of the legs in the case of a tanker driver was considered by this Court in K. Janardhan v. United India Insurance Co. Ltd. In that case, a tanker driver suffered serious injuries in a motor accident and as a result, his right leg was amputated up to the knee joint. He made a claim under the Workmen’s Compensation Act, 1923. The Commissioner for Workmen’s Compensation held that the disability suffered by him as a result of the loss of the leg was 100% and awarded compensation to him on that basis. He made a claim under the Workmen’s Compensation Act, 1923. The Commissioner for Workmen’s Compensation held that the disability suffered by him as a result of the loss of the leg was 100% and awarded compensation to him on that basis. In appeal, the High Court, like in the present case, referred to the Schedule to the Workmen’s Compensation Act, 1923 and held that the loss of a leg on amputation amounted to reduction in the earning capacity by 60% and, accordingly, reduced the compensation awarded to the tanker driver. 11. In a more recent decision in Raj Kumar v. Ajay Kumar this Court considered in great detail the correlation between the physical disability suffered in an accident and the loss of earning capacity resulting from it. In paras 10, 11 and 13 of the judgment in Raj Kumar this Court made the following observations: (SCC pp. 349-50) “10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. 11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. (See for example, the decisions of this Court in Arvind Kumar Mishra Vs. New India Assurance Co. Ltd. and Yadava Kumar v. National Insurance Co. Ltd.)” (11) In Ram Kiran Goyal v. Sub-Divisional Engineer, (2012) 1 SCC 429 , at page 431 the Hon. Apex Court has further observed as under:- “9. In a recent decision in Raj Kumar v. Ajay Kumar this Court has considered in detail the different heads under which compensation might be payable to a victim of motor accidents. In para 6 of the decision, the various elements of compensation are enumerated as under: (SCC p. 348) “6. … Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity).” 10. To us it appears that the claimant was not properly compensated under Heads (i) and (iii). As noted above, the appellant remained in hospital for 3 months for his treatment. He lost all his teeth and even after coming out of the hospital he had to use crutches for walking and even standing. A sum of Rs 15,000 for treatment of such injuries appears to us to be wholly inadequate in the year 1987. Moreover, the nature of the injuries suffered by the claimant was such that he never fully got over the same and continued to be under medical treatment till the end of his life. A sum of Rs 15,000 for treatment of such injuries appears to us to be wholly inadequate in the year 1987. Moreover, the nature of the injuries suffered by the claimant was such that he never fully got over the same and continued to be under medical treatment till the end of his life. Materials have been brought before this Court to show that he was obliged to undergo medical treatment all his life and with age the extent of his disability, resulting from the accident, also continued to progress. 11. In the facts and circumstances of the case, we feel that an additional sum of Rs 1,10,000 must be paid to the appellants to adequately and properly compensate them under the Heads (i) “expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food and miscellaneous expenditure” and (ii) “future medical expenses”. We order accordingly. The additional amount shall carry simple interest @ 7% per annum from the date of application. 12. On perusal of the record, it is apparent that the claimant was under surgical and medical treatment for four months and he borne some expenses on that count. He also produced on record the prescription and medical papers. As per medical evidence, 25% of permanent disablement was reported in earning future income. It is no doubt true that, while making assessment, there is element of guess-work, but that guesswork again must have reasonable nexus to the available material/evidence and quantification made. After hearing the counsel for the parties and considering the evidence, this court finds that the claimant was not properly compensated under the heads mentioned above. As discussed above, the appellant remained in hospital for his treatment. He suffered 25% permanent disability even after coming out of the hospital and is unable to perform the work. Therefore, a sum of Rs 44,000/- under all the heads appears to be wholly inadequate. In the facts and circumstances of the case, this court thus feels that an additional sum of Rs.1,00,000/- must be paid to the claimant/appellant to adequately and properly compensate him under the Heads as laid down in the case of Mohan Soni and Ram Kiran Goyal (supra). Hence, now claimant/appellant is held entitled to receive an amount of compensation to the tune of Rs.1,44,000/- (Rs. One lac forty four thousand only) in total, instead of Rs. 44,000/-, as directed under the impugned Award by the tribunal. 13. Hence, now claimant/appellant is held entitled to receive an amount of compensation to the tune of Rs.1,44,000/- (Rs. One lac forty four thousand only) in total, instead of Rs. 44,000/-, as directed under the impugned Award by the tribunal. 13. On perusal of the evidence, it has come on record that the claimant was keeping his hand outside the window, so it is a case where some amount of negligence can be attributed to the injured. In the case of T.O. Anthony Vs. Kavaran and others ( 2008 ACJ 1165 ),the Hon. Apex Court has held that where a person suffers injury, partly due to 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. In the said case, the Hon. Apex court found that contributory negligence on the part of the appellant/claimant is only 25% and not 50%. 14. Taking into consideration the facts of the case, in the opinion of this court, the driver as well as the claimant/appellant both were wrong doers and both were responsible for causing such incident up to their role of negligence. This court therefore modifies the aforesaid award to the extent of contributory negligence on the part of the claimant which is only 25%. Consequently, the claimant/appellant shall be entitled to receive Rs. 1,08,000/- (Rs. One lac eight thousand only) on the part of other wrong doer. This amount shall be paid within a period of three months from today by the respondents jointly or severally alongwith interest @ 7% per annum from the date of filing of the petition before the tribunal. Obviously, the rest 25% of the claim amount shall be borne by the claimant himself. 15 In view of the above, the appeal preferred by the appellant stands disposed of. The cross-objection filed under Order 41 Rule 22 of C.P.C. is hereby party allowed up to the extent mentioned above.