JUDGMENT 1. - This appeal for enhancement of compensation by claimant and cross-objections by the insurer are directed against judgment and award dated 28.02.2006 passed by the Additional District Judge (Fast Track) No.6 (Motor Accident Claims Tribunal), Udaipur, ('the Tribunal'), whereby, for the injuries suffered by the claimant-appellant, the Tribunal has awarded a sum of Rs. 1,52,000/- and reduced it to Rs. 76,000/- on account of his 50% contributory negligence alongwith interest @ 6% per annum from the date of filing application for compensation ('the application') i.e. 30.04.2004. 2. The facts in brief may be noticed thus: the claimant filed the application with the averments that on 28.03.2003 when he was riding on a motor cycle and was crossing the road from Saheliyon Ki Badi Road to Kharol Colony Road, a Maruti Van bearing registration No.RJ12-C-1623 being driven by Mohd. Javed while going from Fatehsagar to Fatehsagar Circle, collided with the motor cycle on the wrong side of the road, which resulted in injuries to the appellant; a compensation of Rs. 6,72,039/- was claimed. 3. No reply was filed by the driver and owner of the vehicle. However, a reply was filed by the Insurance Company, inter alia, indicating that the accident occurred on account of sole negligence of the claimant and, therefore, he was not entitled to claim any compensation. 4. On behalf of the appellant, he himself was examined as AW-1 and exhibited 130 documents; no evidence was led by the Insurance Company. 5. After hearing the arguments, based on the site map and the oral evidence of the claimant the Tribunal found that there was contributory negligence to the extent of 50% on part of the claimant in the accident; the salary of the claimant was assessed at Rs. 5,600/- per month; the Tribunal awarded Rs. 66,000/- for medicines, conveyance, special diet and attendant; Rs. 20,847/- for loss of income; assessed permanent disablement at 5% and awarded Rs. 57,120/- for the same; Rs. 8,000/- for pain and suffering and rounded off the sum of Rs. 1,51,967 to Rs. 1,52,000/- and after accounting for the contributory negligence awarded a sum of Rs. 76,000/- as compensation. 6. 66,000/- for medicines, conveyance, special diet and attendant; Rs. 20,847/- for loss of income; assessed permanent disablement at 5% and awarded Rs. 57,120/- for the same; Rs. 8,000/- for pain and suffering and rounded off the sum of Rs. 1,51,967 to Rs. 1,52,000/- and after accounting for the contributory negligence awarded a sum of Rs. 76,000/- as compensation. 6. It is submitted by learned counsel for the appellant that the finding recorded by the Tribunal regarding contributory negligence to the extent of 50% is perverse as there was no evidence available on record and, merely on account of the site map, the Tribunal could not have recorded the finding of contributory negligence; the assessment of income at Rs. 5,600/- per month after deducting assumed contribution of Rs. 1,000/- towards P.F. and Pension Fund is contrary to the settled legal position; the assessment of permanent disablement at 5%, contrary to the disablement certificate, which indicated permanent disablement to the extent of 18%, is wholly unjustified and non-consideration of future prospects alongwith denial of any sum under mental agony is also contrary to the settled position of law and, therefore, the award impugned deserves to be modified and the compensation awarded deserves to be enhanced. 7. Reliance was placed on judgment of Hon'ble Supreme Court in Jiju Kuruvila & Ors. v. Kunjujamma Mohan & Ors., 2013 (2) ACTC (SC) 960 and of this Court in United India Insurance Company Ltd. v. Smt. Santosh Devi & Ors., 2013 (2) ACTC (Raj.) 816 . 8. Per contra learned counsel for the respondent Insurance Company submitted that the finding on contributory negligence is perverse. It was submitted that the finding of 50% contributory negligence is not justified in the facts and circumstances of the case, in fact the claimant is solely responsible for the accident and denial of any amount for future prospects and mental agony is also justified. 9. I have considered the rival submissions and have perused the award impugned alongwith the record of the Tribunal. 10. From a bare perusal of the record including the site map (Exhibit-3), it is revealed that when the appellant was crossing the 40 ft. 9. I have considered the rival submissions and have perused the award impugned alongwith the record of the Tribunal. 10. From a bare perusal of the record including the site map (Exhibit-3), it is revealed that when the appellant was crossing the 40 ft. wide road on motor cycle from 'south to north' for going from Saheliyon Ki Badi Road to Kharol Colony Road; the offending vehicle i.e. Maruti Van, which was travelling from 'west to east' i.e. from Fatehsagar to Fatehsagar Circle, struck the motor cycle, rather both the vehicles collided almost at the end of the 40 ft. wide road; the fact that the accident took place at the end of 40 ft. road, which was to the extreme left of the Maruti Van, travelling from Fatehsagar to Fatehsagar Circle, indicates that the motor cycle, which crossed almost more than 30 ft., was already in view of the Van driver and despite that instead of trying to go on the middle of the road to avoid collusion, he went to the extreme left and that also when on the left side there was a road, clearly indicates that the Van was being driven at an excessive speed, which resulted in its driver not able to control the said vehicle despite viewing the motor cycle crossing the road well in advance, which resulted in the accident. However, at the same time, contribution of the claimant cannot be ruled out in view of the fact that even he also would have seen the Maruti Van by the time he had crossed about 35 ft. road and either could have stopped giving way to the Van or in any case, could have avoided the accident. 11. Hon'ble Supreme Court in the case of Pramod Kumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak & Ors., (2002) 6 SCC 455 while reiterating the principles of contributory negligence observed thus:- "8...........The question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as "negligence". Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence" it does not mean breach of any duty. Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence" it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an "author of his own wrong". 9. Subject to non-requirement of the existence of duty, the question of contributory negligence is to be decided on the same principle on which the question of the defendant's negligence is decided. The standard of a reasonable man is as relevant in the case of plaintiff's contributory negligence as in the case of a defendant's negligence. But the degree of want of care which will constitute contributory negligence, varies with the circumstances and the factual situation of the case..............." 12. In the over all fact situation, in view of the fact that no evidence was led by the owner/driver of the vehicle and the law laid down by Hon'ble Supreme Court in the case of Jiju Kuruvila (supra) and Pramod Kumar Rasikbhai Jhaveri (supra), the negligence of the claimant cannot be assessed more than 25% and to that extent the finding recorded by the Tribunal stands modified. The plea raised in cross-objections has no substance. 13. So far as assessment of monthly income of the claimant is concerned, the deduction of Rs. 1,000/- towards assumed contribution to P.F. and Pension Fund without there being any occasion to do so is not justified. The quantification of the said amount and the rational to do so has no basis, the amount of P.F. and Pension Fund are necessarily to the benefit of the claimant and the same are not lost/consumed, rather the same get accumulated and if a person is deprived of his salary, he is deprived of the said amount as well and, therefore, the deduction being wholly incorrect, the income of the claimant is 6 assessed at Rs. 6,600/- per month. 14. So far as the amount awarded for medicines, conveyance, special diet and attendant as well as loss of salary is concerned, the same does not call for any interference. 15. The Tribunal, based on its perception of working of the medical department while issuing disability certificate and expressing its apprehensions and doubts, has reduced the disability, which was assessed by the Medical Board at 18% to 5%. 15. The Tribunal, based on its perception of working of the medical department while issuing disability certificate and expressing its apprehensions and doubts, has reduced the disability, which was assessed by the Medical Board at 18% to 5%. 16. A look at the disability certificate indicates that the same was issued by the Medical Board comprising of three experts and based on their finding regarding 'pain and difficulty in walking, unable to squat and to sit cross legged, limping++, difficulty in climbing stairs, c/o headache & vertigo, shortening left lower limb 1", ROM left knee 0-1100' opined that the permanent disability was 18%. 17. The claimant's claim to be working as Senior Engineer; having qualification of diploma in Electronics Engineering and the nature of disability indicated cannot be said to be hampering his actual working only to the extent of 5% as assessed by the Tribunal. No reasons whatsoever have been recorded by the Tribunal to arrive at a finding of 5%. The decision of the Tribunal based on its perception only regarding the grant of disability certificate cannot be sustained. 18. In view of the law laid down by Hon'ble Supreme Court in the case of Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343 , the functional disability of the claimant in the facts and circumstances of the case is assessed at 12%. 19. While computing the loss of earning/earning capacity on account of permanent disablement, the Tribunal ought to have considered the future prospects of the claimant. The Tribunal denied consideration of future prospects on account of the fact that appellant admitted in his cross-examination that after the accident his salary has increased. Merely because the person gets a regular increment, it cannot be said that his future prospects are not affected on account of his permanent disability and specially in a case where the claimant is serving with a private organization, wherein, the service as well as increments are by their very nature dependent on performance, therefore, the Tribunal was not justified in denying consideration of future prospects. Looking to the age of the claimant i.e. 32 years, the future prospects have to be assessed at 50% of his income. 20. Looking to the age of the claimant i.e. 32 years, the future prospects have to be assessed at 50% of his income. 20. So far as the denial of any sum under the head of mental agony on account of the claimant suffering permanent disablement, whereby, besides other aspects, his leg has been shortened by 1" and he has been found to be limping is not justified. 21. Hon'ble Supreme Court in S. Manickam v. Metropolitan Transport Corporation Ltd., 2013 ACJ 1935 and K. Suresh v. New India Assurance Company Ltd., (2012) 12 SCC 274 has held that amount for loss of earning/earning capacity and permanent disablement has to be awarded separately. 22. Looking to the over all circumstances of the case, the appellant deserves to be awarded a sum of Rs. 25,000/- towards permanent disablement. 23. In view of the above consideration, the appellant-claimant would be entitled to the compensation as under:- (a) medicines, conveyance, special diet, attendant : Rs. 66,000/- (b) loss of salary for the period of hospitalization (as claimed) : Rs. 20,847/- (c) loss of earning (6600x12x17x12/100) : Rs. 1,61,568/- (d) future prospects : Rs. 80,784/- (e) pain and suffering : Rs. 8,000/- (f) mental agony on account of permanent disablement : Rs. 25,000/- Total Rs. 3,62,199/- Less : contributory negligence @ 25% : Rs. 90,549/- Compensation Rs. 2,71,650/- 24. In view of the above discussion, the appeal is partly allowed and the cross-objections filed by the Insurance Company are rejected. The award passed by the Tribunal is modified to the extent that instead of Rs. 76,000/-, the claimant would be entitled to a sum of Rs. 2,71,650/- alongwith interest @ 6% per annum from the date of filing application i.e. 30.04.2004. The enhanced amount be paid to the claimant within a period of two months.No costs.Appeal partly allowed. *******