The main legal point established in the judgment is the court's reliance on the evidence on record to sustain the finding of rashness and negligence, and the adjustment of the compensation amount based on the claimant's income and disability.

JUDGMENT

1. Heard the learned counsel for the parties.

2. This appeal is directed against the judgment and award dated 09.08.2016 in Claim Petition No.18/2012. Accordingly, the Tribunal has awarded the claimant the compensation of ?13,83,019/- towards the injuries suffered by her in the accident that occurred on 15.08.2009.

3. Mr Kakodkar submits that the evidence on record was insufficient to return a finding that the truck driver of the insured vehicle was rash and negligent. He presents that the driver of the car in which the claimant was travelling did not step into the witness box. Even the claimant did not step into the witness box. Only her husband, in the back seat, stepped into the witness box as a power of attorney holder. He submits that no finding of rashness and negligence could have been reached based on the husband's evidence.

4. Mr Kakodkar submits that in the alternate, this is a case of composite negligence between the car driver and the truck driver. Further, he submits that since the car was owned by the claimant's husband at least 50% liability must be borne by the car driver and the claimant's husband.

5. Mr Kakodkar submits that even the quantum of compensation is excessive and does not represent just compensation. He referred to the evidence of the claimant's husband and the Chartered Accountant to point out that the claimant's income had increased many folds after the accident. As such, there was no justification to award ?9,00,000/-towards loss of income. He submits that the award of ?1,00,000/-towards disability and ?9,00,000/- towards loss of income amounts to duplication and overlapping.

6. Mr Kakodkar submits that no doctor was examined; therefore, the finding about 26% disability is based on no evidence on record.

7. For all these reasons, Mr Kakodkar submits that this appeal should be allowed and the impugned award be set aside.

8. Mr Faldessai defends the impugned award based on the reasoning therein. First, he submits that the finding about rashness and negligence is based on evidence on record. Second, he submits that the truck driver did not step into the witness box; therefore, the adverse inference was rightly drawn against him. Third, he submits that the truck was a weightier vehicle and additional duty of care was expected while driving in Anmod Ghat. He, therefore, submits that the finding on rashness and negligence warrants no interference.

9. Mr Faldessai submits that the compensation determined is fair and proper. He submits that though the loss of income was to the extent of ?19,00,000/- per annum, the Tribunal has taken this loss at only ?1,00,000/- per annum. He submits that no compensation has been awarded for the loss of expectation of life, discomfort and inconvenience.

10. For all these reasons, he relies on Raj Kumar Vs Ajay Kumar and Another, (2011) 1 SCC 343 and Rajendra Datta Halarnkar and Another Vs Deepali Dinesh Halarnkar, 2022 SCC OnLine Bom 291 in support of his contentions.

11. The rival contentions now fall for my determination.

12. Upon due consideration of rival contentions and the material on record, the following two points arise for determination in this appeal.

(a) Is the finding of rashness and negligence on the truck driver's part sustainable?

(b) Whether the Tribunal correctly determines the quantum of compensation?

13. On the issue of rashness and negligence, the record bears out that while the claimant's husband, who was in the car at the time of the accident, has deposed to the genesis, the truck driver failed to step into the witness box. Secondly, based on their investigation, the independent investigating agency filed an FIR against the truck driver, not the car driver in which the claimant and her husband were travelling.

14. The claimant's husband (AW1) has deposed not only as a witness to the accident but also as a power of attorney holder for the claimant. He has produced on record the FIR, complaint and panchanama. He denied the suggestion of contributory or com