By the Court.—This appeal has been filed by Union of India through the Secretary, Ministry of Defence, New Delhi, being aggrieved against the judgment and award dated 28.3.2001 passed by the Motor Accident Claims Tribunal/Additional District Judge, Allahabad in MACP No. 31 of 1999, Rajiv Kumar Srivastava v. Union of India, awarding compensation to the tune of Rs. 9,50,000/- with 10% interest to the respondent inter alia on the ground that the compensation which has been awarded in favour of respondent is excessive and also that the Tribunal has not calculated the compensation as contemplated under law.

2. Learned counsel for the appellant Sri Subodh Kumar submits that the compensation is excessive and, therefore, same is required to be taken into consideration by this Court. Learned counsel for the appellant has tried to dispute the award on the ground that the injured was not wearing helmet, as such, it amounted to contributory negligence and accident in question has not taken place with the vehicle in question, which has been stated in the claim petition.

3. The argument of the learned counsel for the appellant has to be tested in the light of the evidence adduced by the parties and finding recorded by the Tribunal.

4. Whether non wearing of helmet by the injured can had to contributory negligence?

5. The contributory negligence has to be taken into consideration in the light of the fact that when both the parties are negligent to a certain extent. In the present case the injured was hit from the back by the offending vehicle. Once the injured was hit from the back side, the argument of learned counsel for the appellant that non-wearing of helmet resulted in contributory negligence cannot be accepted by us. The compensation has to be awarded on the basis of rash and negligent driving of a particular vehicle. The rash and negligent driving is established from the fact that injured was hit from the back side.

6. The argument of learned counsel for the appellant that the accident has not taken place from the offending vehicle cannot be accepted and neither it has any leg to stand in view of the fact that the vehicle in question was identified on the spot. There is ample evidence to establish that the accident in question has taken place from the said vehicle. There being no doubt in regard to involvement of the offending vehicle and the evidence adduced in respect of the accident is clear and cogent.

7. We are unable to accept the argument of the learned counsel for the appellant that the accident has not taken place from the offending vehicle. So far as the argument in regard to award of excessive amount is concerned, we are persuaded by learned counsel for the appellant and learned counsel for the respondent in this regard and both the parties have tried to convince the Court in regard to award of adequate compensation.

8. Sri Ashok Kumar Singh, learned counsel for the respondent, has submitted that even if no appeal has been filed, the adequate compensation can be awarded upon the controversy in respect of award of compensation. In support of his argument, learned counsel for the respondent has placed reliance on a judgment of Apex Court in the case of Jitendra Khimshankar Trivedi and others v. Kasam Daud Kumbhar and others, 2015 (4) SCC 237, in paragraph 13 of the said judgment Apex Court held as follows;

“13. The tribunal has awarded Rs. 2,24,000/- as against the same, claimants have not filed any appeal. As against the award passed by the tribunal when the claimants have not filed any appeal, the question arises whether the income of the deceased could be increased and compensation could be enhanced. In terms of Section 168 of the Motor Vehicles Act, the Courts/tribunals are to pass awards determining the amount of compensation as to be fair and reasonable and accepted by the legal standards. The power of the Courts in awarding reasonable compensation was emphasized by this Court in Nagappa v. Gurudayal Singh and