These appeals are at the instance of the

Insurance Company and claimant calling in question

the correctness of the judgment and award dated

14.12.2010 passed in MVC No.2232/2010 on the file

of the IX Additional Senior Civil Judge, Small Causes

Court, Bangalore.

4

The claimant has stated in the petition that

on 04.02.2010, he was traveling as a passenger in

Tata Indica Car bearing registration No.KA-04-B-7234

and at about 1.15 a.m., on Lalbagh Road near

Prestige Group Building, the driver of the car drove

the same in a rash and negligent manner and dashed

against another car bearing registration No.UP-80-AF-

6737 to its hind side. On account of tremendous

impact of the accident, the claimant had suffered

grievous injuries.

3.

Before the Claims Tribunal, respondent

No.1-Insurance Company entered appearance and

filed its detailed written statement denying the

material

averments

in

the

claim

petition

and

respondent No.2-owner of vehicle has remained

ex- parte.

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4.

During the trial, the claimant has examined

himself as PW.1, the Medical Expert from Jayanagar

Orthopedic Centre was examined as PW.2 and the

Manager of his employer M/s. SLK Software Services

Pvt. Ltd. was examined as PW.3. Exs.P1 to P28 were

marked. Respondents did not examine any witnesses.

Ex.R1, the Insurance Policy was marked.

5.

After hearing the learned counsel on both

sides and perusing the records, the Tribunal allowed

the claim petition in part and awarded a compensation

of Rs.1,74,000/- with interest thereon at 6% p.a. on

Rs.1,64,000/-. The liability to pay the compensation

was fastened on the Insurance Company, which was

respondent No.1 before the Tribunal.

6.

Learned

counsel

for

the

appellant-

Insurance

Company

in

support

of

his

appeal

vehemently contended that the negligence on the part

6

of the driver of the offending vehicle has not been

proved by necessary evidence before the Tribunal. He

submitted that even though the employer had

reimbursed a sum of Rs.25,000/- towards medical

expenses, the Tribunal has again awarded the same in

favour of the claimant, which the Insurance Company

is not liable to pay. Nextly, he contended that the

claimant continued to work in the Company till the

end of July 2010 and in spite of the accident, the

Tribunal has awarded Rs.10,000/- towards 'loss of

income during the laid up period' of two months,

which is erroneous. Lastly, he contended that since

the claimant did not suffer any functional disability, no

compensation under the head of 'loss of earning

capacity' could have been awarded and therefore, the

Tribunal has erred in awarding Rs.84,000/- under the

head of 'loss of earning capacity'. He therefore,

submits that the appeal preferred by the Insurance

7

Company is entitled to be allowed and claim petition

should be dismissed.

7.

Learned counsel for the claimant in support

of her appeal while refuting the contentions of the

learned

counsel

for

the

Insurance

Company,

submitted that the wound certificate and evidence of

PW.2 clearly shows that the claimant had suffered

comminuted fracture of the right humerus. She

therefore, submitted that a sum of Rs.25,000/-

awarded by the Tribunal under the head of 'Pain and

Suffering' is on the lower side and it is required to be

enhanced. She further submitted that the claimant

was earning a monthly salary of Rs.1,31,075/- as per

Ex.P10 - Salary Certificate, which has also been

supported by the evidence of PW.3, who is the

Manager of the employer of the claimant. She

submitted that in spite of the same, the Tribunal has

awarded a meager amount of Rs.10,000/- towards

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'loss of income during the laid up period', which is

required to be enhanced. She submitted that under

the head of 'loss of amenities', the Tribunal has

awarded only Rs.10,000/- which was highly on the

lower side. As could be seen from the evidence of

PW.3, which reflect the disability leading to loss of

amenities

suffered

by

the

claimant-PW.1,

she

submitted

that

on

the

said

head

also

the

compensation is requir