The main legal point established in the judgment is the entitlement of the claimant to enhancement of compensation for 'loss of amenities' and 'loss of income during the period of treatment' under the Motor Vehicles Act.

JUDGMENT

1. Challenging judgment and award dtd. 14/5/2019 passed in MVC No.566/2015 by Prl. Senior Civil Judge and CJM and MACT, Ramangara, (hereinafter referred to as 'tribunal') this appeal is preferred by claimant seeking enhancement of compensation.

2. Shri. K Shantharaj, learned counsel for claimant submitted that in an accident that occurred on 11/7/2015 when claimant was walking by side of road, rider of motorcycle bearing registration no.KA-02-ER-6464 riding it in rash and negligent manner, dashed against him causing grievous injuries. Despite taking treatment, he sustained disability. Claiming compensation for the same, claim petition was filed against owner and insurer of motorcycle under Sec. 166 of the Motor Vehicles Act.

3. After issuance of notice, respondents no.1 and 2 entered appearance, but did not file written statement. Claimant examined himself as PW.1 and Dr. Malavegowda as PW.2. Exhibits P.1 to P29 were marked. Respondents did not lead evidence.

4. On consideration, tribunal held that accident occurred due to rash and negligent riding of motorcycle by its rider, that it was insured with second respondent - insurer, which was liable to pay compensation. Relying upon evidence of PW.2, who stated that claimant sustained fracture of both bones of right forearm and whole body disability at 9.24%, tribunal held claimant entitled for compensation of Rs.3,37,496.00 from respondents no.1 and 2 are jointly and severally.

5. Not satisfied with quantum of compensation, claimant is in appeal for enhancement. It was submitted that tribunal did not award adequate compensation towards 'loss of amenities' and also 'loss of income during period of treatment' and sought enhancement.

6. On the other hand, Shri B.C. Shivanne Gowda, learned counsel for respondent - insurer supported the award and opposed enhancement. It was submitted that claimant did not lead any evidence to substantiate occupation and his income. Notional income assessed by tribunal was on higher side, therefore submitted that compensation awarded was adequate and sought dismissal of appeal.

7. From above submission, occurrence of accident due to rash and negligent riding of rider of insured vehicle is not in dispute. Issuance of insurance policy and its validity as well as liability of insurer to pay compensation is also not in dispute. Claimant is in appeal seeking enhancement of compensation. Therefore, only point that arises for consideration in this appeal is: "Whether claimant is entitled for enhancement of compensation as sought for?"

8. In order to establish injury, disability and loss of future income, claimant produced wound certificate, medical discharge summary, inpatient records, x-rays and OPD slip as per Ex.P.5 to 29 respectively. Referring to Ex.P.5, tribunal held that claimant sustained fracture of both bones of right forearm and as per evidence of P.W.2, whole body disability at 9.24%, tribunal awarded compensation under various heads.

9. Indeed, claimant had stated that he was working as sales executive and led evidence to substantiate his income. But insurer has not disputed same before tribunal. Therefore, assessment of monthly income by tribunal cannot be interfered with. Claimant sustained fracture of both bones of right forearm. In its judgment, tribunal has taken note of observation of PW.2 - doctor as under: "Patient complains of pain and stiffness of right elbow joint. On examination: stiffness present and final flexion and supination - pronation around right elbow are restricted. Movements around right shoulder are normal".

10. In view of above observation, and keeping in mind claimant's avocation, assessment of functional disability does not call for enhancement. But, tribunal has awarded Rs.15,000.00 towards 'loss of amenities', which would be inadequate, in view of above evidence. Therefore, it would be just and proper to award Rs.30,000.00 towards 'loss of amenities'. Tribunal assessed monthly income of claimant at Rs.10,000.0