ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) These appeals are filed challenging the judgment and award dated 05.02.2013, passed by the Principal Senior Civil Judge and Additional MACT, Gokak, in MVC No.1981/2011.

2. MFA No.21415/2013 is filed by the insurance company seeking reduction of compensation and MFA No.21032/2013 is filed by the claimant seeking enhancement of compensation.

3. Heard the arguments of learned counsels appearing for both the sides and perused the material placed before the Court.

4. Since the claimant had sustained injuries in a motor vehicle accident occurred on 20.07.2011 at about 09.30 p.m., as he was moving on a motorcycle as a pillion rider and due to sudden application of brakes, the motorcycle turtled and caused the accident. Therefore, the claimant sustained injuries. The tribunal after considering the injuries sustained by the claimant, has awarded compensation as under:

5. Learned counsel for the insurance company submitted that considering the nature of injuries sustained, holding permanent physical disability at 50% to the whole body by the tribunal is not correct. It should be around 15%. Therefore, by taking 15% disability to the whole body and considering the notional income as per the chart prepared by the Karnataka State Legal Service Authority in the absence of proof of income, the compensation is to be reduced. Hence, he prays to allow the appeal filed by the insurance company.

6. On the other hand, learned counsel for claimant submitted that the percentage of permanent physical disability to the whole body held by the tribunal is correct, but the income taken is on lower side since the claimant was doing grocery shop business and earning more than Rs.10,000/- per month. Therefore, prays to take income of the claimant at least Rs.10,000/- per month and prays to enhance compensation by allowing the appeal filed by the claimant.

7. In the present case, from the medical evidence on record it is proved that the claimant has suffered the following injuries.

“Fracture shaft femur right side;

Compound comminuted fracture shaft tibia and fibula or right leg/cut lacerated would

3” x 2”.

Other grievous injuries all over the body.”

8. It is the evidence of PW.2 doctor that upon clinical examination it is found that the claimant has suffered the following injuries.

“Tenderness over right hip, tight, knee, leg and ankle;

There is healed scar over outer aspect of right hip, front of right knee and leg;

Flexion at right hip is restricted by 40 degrees, internal rotation and external rotation at right hip are restricted by 20 degrees;

Flexion at right knee restricted by 60 degrees.

Dorsiflexion and planter flexion at right ankle are restricted by 20 degrees. Aduction and aduction at right ankle are restricted by 20 degrees and painful.

He walks with limp on right side;

He cannot sit squat and run;

He has difficulty in climbing staircase.

Walking a long distance and do the work.

Present x-ray of right hip and thigh shows united fracture of right femur with implants inside;

x-ray of right leg shows united fracture of tibia and fibula with implants inside.”

9. Since the claimant suffered fracture to the shaft femur right side and compound comminuted fracture of shaft tibia and fibula of right leg and the claimant is walking with limping on right side and also finding difficulty in climbing the staircase, he cannot sit, squat and run. He cannot walk long distance and do the work. Therefore the doctor PW.2 has stated that the claimant has suffered permanent disability of 25% due to femur bone and 25% due to compound comminuted fracture of shaft of tibia and fib