ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL)

Though this appeal is listed for orders, with the consent of learned counsel for both the parties, it is taken up for final disposal.

2. This appeal is filed by the injured-claimant seeking for higher compensation being aggrieved by the judgment and award dated 25.08.2012 passed in MVC No.743/2011 by the I Additional Senior Civil Judge and CJM and Additional MACT, Dharwad (for short, ‘Tribunal.’)

3. The appellant met with a road accident on

25.06.2011 when he was proceeding from Varur to Hubli in a bus bearing Reg.No.KA-25-A-9061. The injured was aged about 17 years at the time of accident. He was admitted to KIMS Hospital, Hubli from 25.06.2011 to 11.08.2011. Due to the accident, the appellant’s left hand is amputated. Thus, claim petition is filed before the Tribunal seeking compensation.

4. Respondents entered appearance before the Tribunal and filed detailed statement of objections by denying the averments made in the claim petition. They have denied age, income and avocation of the appellant and sought for dismissal of the claim petition.

5. The Tribunal recorded the evidence of the parties.

The claimant got examined 2 witnesses as PWs-1 and 2 and got marked 15 documents as Exs.P-1 to P-15, the respondent did not adduce any oral evidence but with the consent got marked one document as Ex.R-1. The Tribunal awarded total compensation of Rs.7,81,082/- along with interest at 8%p.a.

6. Sri.Hareesh S.Nayak, learned counsel appearing for the appellant-injured submits that the Tribunal committed grave error in assessing the income of the injured at Rs.4,000/- p.m. and functional disability at 50% which are contrary to the evidence available on record. He submits that the appellant is entitled to an addition of 40% of the assessed income under the head of loss of future prospects, but the Tribunal has added 30%. He further submits that the award of compensation by the Tribunal on all other heads is also required to be reassessed appropriately. Hence, he seeks to allow the appeal.

7. Per contra, Sri.R.S.Arani, learned counsel appearing for respondent No.2 – Insurance Company supports the impugned judgment and award of the Tribunal and submits that the appellant himself has claimed that he is earning Rs.5,000/- p.m. hence, considering more income would be contrary to the pleading, hence, he seeks to dismiss the appeal.

8. We have heard the arguments of the learned counsel appearing for the appellant-injured and learned counsel appearing for the respondent-insurance company and meticulously perused the Tribunal records. The only point that would arise for consideration in this appeal is “Whether the impugned judgment and award passed by the Tribunal calls for interference in this appeal”?

9. The undisputed facts are that the appellant met with a road accident on 25.06.2011 and his left hand was amputated from below shoulder and he was provided treatment in KIMS Hospital as inpatient from 25.06.2011 to 11.08.2011.

The oral testimony of PW-2/Doctor clearly indicates that the injuries sustained by the appellant is de-gloving injury over left forearm, compound fracture of humerus upper 1/3rd, PW-2 has further deposed that the appellant’s left hand below shoulder is amputated. The evidence of PW-2 corroborates with the discharge summary at Ex.P-9 and other medical records. Considering the aforesaid fact, the Tribunal has assessed 50% of the functional disability, in our considered view the Tribunal committed grave error in assessing the disability. It would be useful to refer the decision of the Hon’ble Supreme Court in the case of Rajkumar Vs. Ajay Kumar & Another1 wherein it has laid down certain guidelines to assess the permanent disability of the injured at paragraph Nos.13 & 14, which are extracted herein below:

“13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the cl