In assessing compensation for injuries, both physical and functional disabilities must be objectively evaluated to reflect the true impact on earning capacity.

JUDGMENT :

C.M JOSHI, J.

1. Heard learned counsel appearing for the appellant/petitioner and the learned counsel Sri B. S. Umesh, appearing for respondent No.3-Insurance Company.

2. The petitioner in MVC No.15/2011 is before this Court being aggrieved by the judgment and award of the learned Additional District and Sessions Judge and MACT, Chamarajanagara, sitting at Kollegala dated 21.06.2016.

3. The factual matrix of the case is that on 27.07.2010 at about 06.00 p.m., while the petitioner was driving his TVS Moped bearing No. KA.02.ET.3975 along with a pillion rider near Venkateshwara Garage at about 07.30 p.m., a tempo bearing No.TN.54.Y.7645 driven by respondent No. 1, owned by respondent No. 2 and insured by respondent No. 3 came in a rash and negligent manner and collided with the two wheeler of the petitioner resulting in the petitioner sustaining injuries to his right leg, right hand etc. The petitioner and the pillion rider were admitted to the hospital and it was found that the petitioner had sustained fracture of the right radius coupled with a nerve palsy on the right hand. The petitioner contended that he was a driver by profession and was earning Rs.10,000/- per month and as such, he is entitled for adequate compensation.

4. The petition was opposed by respondent No. 2 and respondent No. 3 contending that there was no such negligence on the part of the driver of the tempo and the compensation claimed is highly exorbitant, imaginary and untenable. Respondent No.3-Insurance Company contended that there is violation of the terms and conditions of the policy and therefore, it is not liable to pay any compensation to the petitioner.

5. On the basis of the above contentions, appropriate issues were framed by the Tribunal. The petitioner was examined as PW1 and Exhibit P1 to 14 were marked. The doctor who has treated the petitioner was examined as CW1 and Exhibit C1 to C4 were marked through him. The official of respondent No. 3 was examined as RW1 and Exhibit R1 to R3 were marked through him.

6. After hearing the arguments, the Tribunal held that the negligence was on the part of the tempo driver and fastened the liability on respondent No.3 Insurance Company and after appreciating the evidence on record, the Tribunal has awarded a compensation of Rs.3,13,480/- under different heads as below:

7. Being aggrieved by the same, the petitioner is before this Court seeking enhancement of the compensation.

8. Learned counsel appearing for the petitioner submits that the Tribunal erred in holding the income of the petitioner at Rs.6,000/- per month and since he was a driver, aged about 27 years, his income should have been taken at Rs.10,000/- per month. Secondly, he submits that the disability stated by CW1, who happens to be the treated doctor, should have been accepted by the Tribunal and therefore, the assessment of disability at 17%, which is one third (1/3) of the disability to the limb as stated by CW1 is incorrect. He submits that the functional disability of the petitioner should have been assessed by the Tribunal, but the Tribunal has assessed the physical disability alone. Therefore, he contends that the compensation be reassessed.

9. Per contra, learned counsel appearing for respondent No. 3 would submit that there is no need for indulgence by this Court in enhancing the compensation. He submits that compensation awarded under all the heads are adequate and there is no need for any enhancement. It is his submission that CW1 is an Orthopedic Surgeon and therefore, he cannot say anything about the nerve palsy,