The assessment of contributory negligence, disability, and loss of earning capacity should consider the appellant's profession and relevant legal provisions, leading to a modification of the compensation awarded.

Impugned Award of 3rd March, 2008 grants compensation of Rs.3,55,180/- with interest at the rate of 7% to appellant, who had sustained grievous injuries in a road accident on 20th July, 2004. The facts are already noted in impugned Award and so, need no reproduction. Suffice to note that appellant, a driver by profession, aged about 24 years, was driving Maruti Van on the day of accident in question and when he reached near Atta Chowk, Sector 27, Noida, his vehicle was hit by a Maruti Zen, which came from left side road. Apart from the evidence of appellant-Claimant, there is evidence of eye-witness-Sandeep Sharma (PW-3) and Dr. Rama Kant Gupta (PW-6), who has proved the Disability Certificate (PW6/1) of appellant indicating that due to injuries suffered in this accident, appellant has sustained 30% permanent disability. No evidence was led by respondents. On the basis of evidence on record, learned Tribunal has rendered impugned Award. The breakup of the compensation granted is as under:-

2. Out of the total compensation of Rs.5,07,400/-, after deducting 30% towards contributory negligence, the net compensation awarded is Rs.3,55,180/-.

3. In this appeal, to seek enhancement of compensation, learned counsel for appellant submits that no contributory negligence can be attributed to appellant because when the instant accident had taken place, appellant’s vehicle had already crossed the crossing and the vehicle driven by first respondent had hit appellant’s vehicle on the left rear side and so, the finding in impugned Award of appellant being negligent to the extent of 30% needs to be set aside and the quantum of compensation granted ought to be enhanced. To assert so, learned counsel for appellant points out that the plea of contributory negligence was not taken by respondent-owner and Insurer in the written statement and so, this plea is not available to them and in a case where a vehicle was going on the main road and another vehicle coming from side road hits the vehicle going on the main road, then no contributory negligence can be attributed to the driver of vehicle going on the main road. To submit so, reliance is placed upon a decision of a co-ordinate Bench of this Court in Sudha Nangia v. Ibrahim and Others, 1993 ACJ 1290 and Pramod Kumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak and Others, 2002 ACJ 1720. Attention of this Court is drawn to Rule 9 of the Central Motor Vehicles Rules, 1989 to point out that a vehicle coming from the side road has to give way to the traffic on the main road at a road junction.

4. It is next submitted by learned counsel for appellant that appellant has been erroneously considered as an unskilled worker whereas he was a skilled driver as he was holding a valid driving licence (Ex.PW1/5) for Light Motor Vehicle (LMV). It is further pointed out by appellant’s counsel that after this accident, appellant is unable to drive any vehicle because of restricted neck movement and it is so evident from evidence of Dr. Rama Kant Gupta (PW-6), who has categorically deposed that appellant can do other work which do not involve neck movement and so, appellant is selling vegetables. Reliance is placed upon Supreme Court’s decision in Pratap Narain Singh Deo v. Shrinivas Sabata and Another, AIR 1976 SC 222 to submit that due to loss of neck movement, the disability of appellant-Claimant ought to be taken as 100%. Thus, it is submitted that ‘loss of earning’ ought to be taken to be atleast 50% and not 30%. Lastly, it is submitted that compensation granted for ‘pain and sufferings’ is on lowe