Compensation for personal injury must adequately reflect the severity of injuries and associated suffering, with the finding of primary negligence resting on the lorry driver.

JUDGMENT :

UMESH M. ADIGA, J.

Both these appeals arise out of judgment and award dated 18.11.2019 passed by the Additional Motor Accidents Claims Tribunal and II Additional Senior Civil Judge, Udupi (for short 'Tribunal') in MVC.No.604 of 2017. MFA.No.1427/2021 is filed by the claimant and MFA.No.2579/2020 is filed by insurer.

2. Both the appeals arise out of common judgment and award, therefore they are taken up together for disposal.

3. For the sake of convenience, the parties are referred to as per their ranking before the Tribunal.

4. It is a case of the claimant that on 23.11.2016 at about 07.45 a.m., while the petitioner was going on his motorcycle bearing registration No.KA-20-W-6003, met with an accident on Mijaru to Mangaluru road due to rash and negligent driving of lorry bearing registration No.KA- 19-AA-9678. Due to impact, the claimant sustained fracture injuries and has suffered permanent disability. With these reasons, he prayed to award compensation.

5. The respondents No.1 was the owner and respondent No.2 was the insurer of the offending vehicle. Respondent No.1 remained ex-parte before the Tribunal and respondent No.2 filed its written statement denying the averments of the claim petition and also denied its liability to pay the compensation. With these reasons, it prayed to dismiss the claim petition.

6. From the rival contentions of the parties, the Tribunal framed necessary issues.

7. The claimant to prove his case, examined 4 witnesses as PWs-1 to 4 and marked 39 documents as per Exs.P1 to P39. The respondent-Insurance Company though has not examined any witnesses but marked 01 document as per Ex.R1.

8. The Tribunal after hearing both parties and appreciating the pleadings and evidence on record, by the impugned judgment, awarded the following amount of compensation:

9. Heard the arguments of the learned counsel appearing for the parties.

10. Learned counsel for the appellant/claimant vehemently contends that the claimant had sustained in all four fractures but the Tribunal has awarded meager amount of Rs.40,000/- towards 'pain and agony', which is highly unsatisfactory. He further contends that according to evidence of PW.2, claimant has suffered permanent disability of 39 but the Tribunal has taken only 15%, which is not in accordance with the law. The amount of compensation awarded on the other heads also on the lower side and hence, prays to enhance the compensation.

11. Learned counsel for insurer contends that looking to the facts and circumstances, accident occurred due to the contributory negligence of claimant as well as the driver of the lorry and both have equally contributed to the accident. The Tribunal has not considered the same. The learned counsel further contends that PW.2 is not a competent witness to depose about the disability. According to his own evidence, he obtained Master Degree in Forensic Science and he also admitted that he cannot assess the functional disability to a particular limb as well as the whole body and on basis of such evidence, the claimant is contending that he has suffered functional disability to an extent of 39%. In the absence of evidence of PW.2, there are no materials on record to prove his case regarding the disability.

12. The learned counsel for the insurer further contends that according to evidence of PW.1, he was working as a Probationary Lecturer in a college and earning Rs.23,000/-per month. The said fact is also not proved. If he is permanently working in the said college, then there may not be any loss of income due to the injuries sustained in the accident. Therefore, awarding of compensation under the head 'loss of future earning capacity due to permanent disability' is not s