JUDGMENT S.G. Shah, J. Heard learned advocate Mr. Hakim for appellant. Respondent No.1 is deleted from the array of the parties whereas learned advocate Mr. Hakim for the appellant has prayed to dispense with service of notice upon unserved respondent No.2 relying upon the provisions of Order 41 Rule 14(4) of the C.P.C read with the decision of Hon'ble Supreme Court of India between A. Robert Vs. United India Insurance Co. Ltd., (1999) AIR SC 2977. 2. The bare reading of above two references made it clear that if any litigant is served but absent before the trial court and thereafter if he could not be served then notice upon unserved respondents can be dispensed with. Whereas, so far as such appeals or proceedings for compensation under Motor Vehicles Act, 1988 is concerned, if there is no issue or dispute regarding liability of insurance company and when issue in the appeal is limited to quantum of compensation only, Hon'ble Supreme Court has confirmed that appeal can be proceeded further dispensing with the notice upon driver and owner of the offending vehicle when their insurance company has no option but to indemnify them. Therefore, request by learned advocate for the appellant to dispense with the notice is accepted. 3. Similarly, respondent Nos.3 and 4 though duly served remained absent whereas respondent No.5 is represented by learned advocate Mr.H.S. Shah, who is also heard on merits. 4. It is undisputed fact that practically by impugned award dated 22.3.2004, Motor Accident Claims Tribunal at Vadodara has while awarding compensation to the present appellant being applicant before it exonerated the liability of opponent Nos.4 and 5 before it who are respondent Nos.4 and 5 herein. Thereby, the award was passed against original opponent Nos.2 and 3 being owner and insurer of offending vehicle amongst which opponent No.2 owner though duly served did not appear before the Tribunal whereas opponent No.3 being respondent No.3 herein had though contested the claim petition, they have chosen not to appear in this appeal. Therefore, practically, appeal is to be decided ex-parte against the concerned respondents who are actually liable to pay compensation to the appellant. Thereby, in other words, this appeal is non-contested. 5. Therefore, practically, appeal is to be decided ex-parte against the concerned respondents who are actually liable to pay compensation to the appellant. Thereby, in other words, this appeal is non-contested. 5. It is undisputed fact that appellant is driver of one of the vehicles which were involved in the accident and, therefore, this is the case of contributory negligence between the claimant and other tort-feasor being driver of truck No.GJ1T-7006. It is undisputed fact that on 2.12.1991, when appellant was driving his truck No.GJ-6-Z3813 towards Ahmedabad on Mumbai - Ahmedabad highway while returning back from Bangalore with soap boxes loaded in it; near Kasa police station in Thane District, one truck No.GJ-1T-7006 was coming from the opposite direction i.e. from Ahmedabad side and, there was head on collision between both the vehicles which resulted into combined fracture of tibia, segmental fracture of fibula and fracture of medial mellows of the appellant. It is undisputed fact that for such injuries he has to undergo long operative treatment and has to spend medical and other expenses and, therefore, he has claimed in all Rs. 5,00,000/- towards compensation from owner and insurer of offending vehicle as well as from his own employer and insurance company of his truck. 6. After allowing both the sides to adduce their evidence and to prove their case or to rebut the case of otherside, the Motor Accident Claims Tribunal, Vadodara had by impugned judgment and award dated 22.3.2004 considered the quantum of compensation as under: - Rs.35,000/- - mental pain, shock and suffering Rs.80,000/- - medical expenses and rich diet Rs.10,000/- - transportation & attendant charges Rs.1,21,500/- - future loss of income ======== Rs.2,78,500/- TOTAL ======== 7. For arriving at the quantum of future loss of income, Tribunal has considered Rs. 3,000/- as monthly income of the appellant and 22.5% disablement, whereas 15 as suitable multiplier. 8. However, from such total amount of Rs. 2,78,500/-, Tribunal has deducted 50% amount i.e. 1,39,250/- considering 50% negligence of the appellant and thus awarded only Rs. 1,39,250/- as compensation with 12% interest from the date of application till 31.12.1999 and 9% interest per annum thereafter. 9. 8. However, from such total amount of Rs. 2,78,500/-, Tribunal has deducted 50% amount i.e. 1,39,250/- considering 50% negligence of the appellant and thus awarded only Rs. 1,39,250/- as compensation with 12% interest from the date of application till 31.12.1999 and 9% interest per annum thereafter. 9. In view of above, the appellant has preferred this appeal on both the grounds i.e. (1) Tribunal has erred in considering 50% negligence of the appellant in absence of any evidence by the driver of the offending vehicle and (2) quantum of compensation contending that Tribunal has erred in not awarding just and proper compensation. 10. It is undisputed fact that owner and insurer of offending vehicle being GJ-1T-7006 had not adduced any evidence to disprove and rebut the case of the appellant victim and to prove that either their driver was not negligent at all or that even appellant has contributed to the incident so as to consider the contributory negligence of the appellant. In view of such clear position on record, whereby, except in cross examining the witnesses of the appellant, when owner and insure and other vehicle has failed to adduce any evidence to prove their innocence or contribution of the appellant in accident, the learned advocate for the appellant has relied upon the decision of the Hon'ble Supreme Court of India in the case of Syed Sadiq Etc. v. Divisional Manager, United India Insurance Co. Ltd., (2014) 2 SCC 735 , more particularly, observations and determination in para 29 of such judgment which reads as under:- CONTRIBUTORY NEGLIGENCE: 29. On the matter of extent of contribution to the accident, it is held by the Tribunal that the appellants/claimants herein should have taken utmost care while moving on the highway. Looking at the spot of the accident, the Tribunal concluded that the appellants/claimants were moving on the middle of the road which led to the accident. Therefore, the Tribunal concluded that though the tractor has been charge sheeted under sections 279 and 338 of IPC, but given the facts and circumstances of the case, the appellants/claimants also contributed to the accident to the extent of 25%. The High Court without assigning any reason concurred with the findings of the Tribunal with respect to contributory negligence. Therefore, the Tribunal concluded that though the tractor has been charge sheeted under sections 279 and 338 of IPC, but given the facts and circumstances of the case, the appellants/claimants also contributed to the accident to the extent of 25%. The High Court without assigning any reason concurred with the findings of the Tribunal with respect to contributory negligence. We find it pertinent to observe that both the Tribunal and the High Court erred in holding the appellants/claimants in these appeals liable for contributory negligence. The Tribunal arrived at the above conclusion only on the basis of the fact that the accident took place in the middle of the road in the absence of any evidence to prove the same. Therefore, we are inclined to hold that the contribution of the appellants/claimants in the accident is not proved by the respondents by producing evidence and therefore, the finding of the Tribunal regarding contributory negligence, which has been upheld by the High Court, is set aside. 11. The bare reading of above para makes it clear that in absence of any evidence by the offending vehicle to prove the contribution of the appellant victim, there cannot be a determination regarding contribution of the appellant victim by the Tribunal. Thus, it is clear that in absence of any evidence in rebutal by the driver, owner and insurer of offending vehicle, it is to be held that contribution of the appellant victim in the accident is not proved by the respondent and, therefore, Tribunal has erred in holding that appellant is negligent to any extent. Otherwise also, it is settled legal position that the litigant who pleads anything has to prove it and in absence of proof, pleading alone is not sufficient to hold such issue in favour of such litigant. 12. However, to avoid further discussion of such issue, when Tribunal has discussed the evidence available before it in detailed in para 15 to 18, it would be appropriate to scrutinize such determination with available evidence on record. On perusal of available evidence on record in the form of deposition of the appellant at Exh.69, deposition of one Lalabhai @ Laljibhai at Exh.74 and one Vinodhandra D. Vaishnovi at Exh.55, it becomes clear that there is as many as two witnesses who have categorically deposed that there was no negligence on the part of the appellant victim. 13. On perusal of available evidence on record in the form of deposition of the appellant at Exh.69, deposition of one Lalabhai @ Laljibhai at Exh.74 and one Vinodhandra D. Vaishnovi at Exh.55, it becomes clear that there is as many as two witnesses who have categorically deposed that there was no negligence on the part of the appellant victim. 13. As against that in cross examination of such witnesses, owner and insurer of offending vehicle could not establish their stand regarding contribution of appellant in the accident or could not rebut the evidence of such witnesses for arriving at any such conclusion. 14. Reading of FIR and panchnama also makes it clear that though it may not be clear for establishing negligence of either of the driver, at the same time, it becomes clear that in absence of requisite information in such documentary evidence, there is no scope of considering contribution of appellant in the incident when there is positive evidence in his favour and more particularly when respondent could neither rebut such evidence nor produced any evidence to prove that appellant was also negligent in the accident. 15. It seems that Tribunal has probably misguided itself because of the fact that at the time of panchnama vehicle of the appellant was lying at 300 feet away further on its way towards Ahmedabad from the place of actual impact. However, it is clear position on record that the place of such truck was changed by the police immediately after incident by dragging it with a crane to the premises of nearest Petrol Pump so as to ease the ongoing heavy traffic on such national highway No.8. Therefore, even place where truck of the appellant was found would not confirm that appellant was negligent in his driving. 16. In any case, when there is no evidence by other side to prove the negligence of the appellant and when oral evidence is in favour of the appellant, as against that, when documentary evidence is not sufficient to decide the exact contribution of either of the driver, in my opinion, Tribunal has erred in deciding the contributory negligence of both the drivers @ 50% only because it was head on collision. Considering the heavy traffic on national highway, and more opportunity in such head on collision, the basic principle while considering the negligence would be not only the manner of impact, but last particular available with particular driver to avoid the incident. For the purpose, there is requirement of some evidence on record. In absence of any evidence on record as per Syed Sadiq Etc. (supra), there is no option but to exclude the appellant from any liability so far as negligence is concerned. Therefore, irrespective of any other issue, the appeal needs to be partly allowed by modifying the award holding that the appellant was not negligent for the incident. 17. Whereas so far as quantum of compensation is concerned, learned advocate for the appellant is relying upon the decision in the case of Mohan Soni v. Ram Avtar Tomar, (2012) 1 GLH 399, submitting that in such case, Hon'ble Supreme Court has held that disability is to be determined in the context of loss of future earning and that any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering from disability whereby even in case of 50% disablement certified by the Doctor, the Hon'ble Supreme Court has considered at 90% and calculated the quantum of compensation accordingly. 18. With due respect, though it is a judgment of the Hon'ble Supreme Court, one thing cannot be ignored that though possibility with reference to vocation of the injured, such principle would be applicable when disablement is 50% or more but in normal case with some disablement because of some injuries, in all cases, it cannot be said that some disablement would result into 100% vocational disability so as to award 100% compensation for all such injuries. 19. It is undisputed fact that appellant is having few fractures for which orthopedic surgeon has certified disablement of one leg to the tune of 45% and in his deposition he has admitted that such disablement is to be reduced by 50% for considering it for body as a whole. Therefore, victim's disablement is not 45% but it is only 22.5% as considered by the Tribunal. Therefore, victim's disablement is not 45% but it is only 22.5% as considered by the Tribunal. However, though, it is pleaded and contended that because of such injury, now, appellant would not be able to continue his work as a driver, it cannot be ignored that he is not so disabled that he could not do any other work. It is also clear and settle principle that because of such disablement, he has been compensated to the tune of loss of earning capacity and future earnings. It is undisputed fact that Doctor has categorically certified that disablement is partial though permanent i.e. not total. It has also admitted by Doctor that if regular treatment is taken by such person, then, he would be recovered whereby his disablement would be reduced and it is also admitted by the Doctor that after issuance of certificate, appellant has not taken any treatment. 20. In any case, on scrutiny of entire evidence on record with impugned judgment, I do not find any illegality or irregularity so far as quantum of compensation calculated by the Tribunal is concerned. Therefore, I do not see any reason to modify the quantum part. 21. In view of above facts and circumstances, this appeal is partly allowed whereby now when it is held that appellant victim has not contributed to the accident as held by the Tribunal, the applicant appellant is entitled to full set of compensation i.e. Rs. 2,78,500/-. Therefore, award is modified whereby now appellant is entitled to Rs. 2,78,500/- as per award. Thus, if respondents have already paid amount as per award then they are liable to pay remaining 50% of it i.e. 1,39,250/- with interest as awarded by impugned award. 22. Present appeal is partly allowed in above terms with proportionate costs. 23. R & P be sent back to the Tribunal at the earliest.