The main legal point established in the judgment is the assessment of compensation in injury and death cases, placing the claimant in almost the same financial position as they were in before the accident, and the determination of the quantum of compensation.

G.P. Mittal, J.

This Appeal is directed against the judgment dated 17.05.2004 passed by the Motor Accident Claims Tribunal (the Tribunal) whereby a compensation of Rs. 11,71,000/- was awarded in favour of the First Respondent for having suffered amputation of right hand above elbow and other injuries in an accident which took place on 20.05.1995. He suffered permanent disability in respect of his right upper limb to the extent of 85%.

2. The grounds of challenge are that the accident took place on account of rash and negligent driving of the truck driver who came from the opposite direction and struck against bus number UP-02B-6972 driven by the Appellant's (Corporation) driver. The First Respondent also contributed to the accident as he held his arm outside the window. It is averred that the compensation awarded is exorbitant and excessive.

3. The First Respondent filed cross objections on the ground that the compensation awarded is too low and meager and cannot be said to be just and proper as envisaged u/s 168 of the Motor Vehicles Act, 1988 (the M.V. Act).

NEGLIGENCE

4. The accident took place on 20.05.1995 when First Respondent (Navneet Jerath) was travelling in bus number UP-02B-6972 from Nainital to Delhi. First Respondent entered the witness box as PW-10 and deposed that at about 1:30/1:45 A.M. (in the night) the bus reached near Gajrola U.P. His son aged about 41/2 years was sleeping in his lap. He was sitting on the window side on the right side of the bus. The witness deposed that the bus was being driven at a high speed. He noticed a huge impact and something came scratching from the right side of the bus. He found his right arm missing and felt tremendous pain. The bus stopped after a distance of 400-500 meters. A few people went to the spot in search of his missing arm but it could not be traced.

5. PW-9 Vinay Kumar corroborated PW-10's testimony. He deposed that at about 1:00/1:30 A.M. he was occupying a seat in the rear side of the bus. The bus was being driven at a fast speed when the collision took place. Even after the accident, the bus stopped at a distance of about half a km. He deposed that the claimant pointed out that his right arm was missing. The bus was reversed to the place of the accident. With the help of some torches the Claimant's right arm was tried to be traced but the same was not found.

6. The Tribunal by the impugned judgment held that the driver of the offending bus was not produced. There was no reason to disbelieve PW-8 and PW-10's testimonies. The Tribunal applied the principle of res ipsa loquitor and held that the accident took place on account of rash and negligent driving by the bus driver. It is urged by the learned counsel for the Appellant that the accident occurred on account of rash and negligent driving of the truck coming from the opposite direction. The driver and the owner of the truck have not been impleaded in the petition. In any case, the driver and owner of the truck were equally responsible and without them being impleaded, compensation could not have been awarded against the Appellant.

7. The second limb of argument on negligence is that since the First Respondent kept his arm outside the window, he was equally at fault and the compensation awarded to be reduced on account of First Respondent's contributory negligence. I see no reason to disagree with the conclusion reached by the Tribunal with regard to the negligence of the driver of bus number UP-02B-6972 for more than one reason.

8. Firstly, there was no negligence on First Respondent's part in placing his elbow/arm on window sill which I would deal in detail a little later. The driver of the bus was not produced by the Appellant Corporation to prove the manner of the accident. Thus, it could not be said that there was no negligence on the part of the bus driver or that the truck driver was at fault. Assum