J U D G M E N T

Heard learned counsel for the appellant and the learned counsel for the respondent No.2-Insurance Company.

2. The present appeal is directed against the judgment and award dated 17th September, 2016 passed in MVC No.877 of 2016 by the X Additional Judge Small Causes and Motor Accident Claims Tribunal (for short hereinafter referred to as ‘Tribunal’). The appellant/petitioner has approached this Court in appeal seeking enhancement of compensation.

3. It is the case of the appellant/petitioner that on 3rd January, 2016 at 11.30 a.m. while he was proceeding on his motorcycle near Jain Temple, the driver of the car bearing registration No.KA-04-MP-9889 came in a rash and negligent manner and dashed against the motorcycle of the appellant/petitioner causing accident. The appellant/petitioner contend that he sustained injuries and was immediately shifted to V.S. Acharya Hospital where he took the first aid and then he was shifted to Hosmat Hospital, Bangalore and there he was an inpatient from 03rd to 13th January, 2016. He was diagnosed to be having the injury of left ankle subluxation with medial malleoli, type B open fracture, closed fracture of proximal third of right humerus with radial nerve palsy, pubic rami fracture right side. The appellant/petitioner contend that he underwent open reduction and internal fixation with DCP for right humerus and SSG of left ankle; and had spent Rs.5.00 lakh for treatment. It was contended that the appellant/petitioner was working in Maruti Medical Centre, Banashankari III Stage, Bengaluru and was drawing a salary of Rs.14,500/- per month and due to accident, he has lost the said job. It is further contended that the driver of the car was prosecuted by the police for rash and negligent driving and therefore, the petitioner is entitled for compensation from the owner and Insurer of the car who are arrayed as respondents 1 and 2.

4. On being issued with notice by the Tribunal, respondents 1 and 2 appeared before the Tribunal and filed objections denying that the accident had occurred due to the negligence on the part of the driver of the car. Respondent No.1 contended that the negligence is on the part of the appellant/petitioner himself and that the respondent No.2- Inurance Company had issued the Policy of Insurance and as on the date of the accident, the Policy was in force and as such, liability has to be fastened upon the respondent No.2-Insurance Company. The respondent No.2 contended that the compensation claimed is highly exorbitant, imaginary and untenable. The terms and conditions of the Policy were violated and as such, the liability has to be fastened upon the owner of the vehicle.

5. On the basis of pleadings, the Tribunal has framed necessary issues and the appellant/petitioner was examined as PW1 and marked exhibits P1 to P19 were marked. The Doctor of Hosmat Hospital was examined as PW2. No evidence was led on behalf of respondents. After hearing both the sides, the Tribunal, by impugned judgment, award compensation of Rs.5,87,548/-. Aggrieved by the said judgment and award, the petitioner is before the Court in this appeal.

6. On issuance of notice, the respondent-Insurance Company has appeared through its Counsel and notice to respondent No.1 was dispensed with. The records of Tribunal have been secured.

7. Learned counsel for the appellant submits that even though PW2 has stated that disability was to the extent of 35% to the whole body, the Tribunal has assessed it at 22%, which is not proper and correct. Further, he submits that the notional income of the petitioner was also not properly considered by the Tribunal and the future medical expenses, as deposed by PW2, was not considered by the Tribunal. Therefore, he contends that the compensation awarded by the Tribunal is erroneous and there is a need for enhancement.

8. Per contra, the learned counsel appearing for the Respondent No.2-Insurance Company has defended the award passed by the Tribunal contending that