J U D G M E N T

Heard the learned counsel for the appellant and the learned counsel for the second respondent.

2.The appeal is filed by the claimant for enhancement of compensation.

3.The claimant herein met with a road accident on 03.06.2008, while he was riding his two wheeler bearing Registration No.TN 22 M 0425. According to the claimant, when he was riding his two wheeler along GST road at Kirapakkam junction, Guduvanchery, an Auto bearing Registration No.TN 05 V 6424 driven rash and negligently by its driver hit behind the claimant's two wheeler. The claimant sustained grievous injury and was admitted in the hospital. He was treated as inpatient from 03.06.2008 to 27.06.2008 for the fractured injury. The fracture on his right humerus at supra condylar level with external fixation, external fixation debridement, open reduction internal fixation + olecranon osteotomy, had lead to 45% partial and permanent disability. In support of his claim, he has relied upon the evidence of P.W.2 and the disability certificate Ex.P10 given by P.W.2. The claim petition seeking compensation of Rs.6,00,000/- filed before the Tribunal.

4. The claim petition was opposed by the Insurance Company stating that the vehicle insured under them was not driven by qualified driver and the accident was not intimated to them. In any event, the claim made by the claimant is excessive, arbitrary and imaginary. The accident occurred only due to the negligence of the claimant. The claimant drove his scooter rash and negligently and hit TSTC bus bearing Registration No. TN 32 N 2483. Instead of claiming damages against TSTC bus, the claim being falsely made against the Insurance Company.

5. The Tribunal after considering the evidence held that the claimant has proved the accident occurred in the manner which he has stated in the petition. No evidence is adduced on behalf of the respondent to disprove the negligence on the part of the first respondent driver. Having held that the negligence is on the part of the first respondent driver, the Tribunal awarded a sum of Rs.1,57,862/- with 7.5% interest from 29.07.2008 till the date of realisation.

6. In the appeal, the claimant contends that the Tribunal failed to properly appreciate the medical evidence particularly, the disability certificate given by P.W.2, who has assessed the injury at 45%. After converting the said injury to loss of earning capacity, the Tribunal ought to have applied multiplier. Contrarily, the Tribunal has awarded a lumpsum of Rs.30,000/- fixing the injury at 10%. Further, the learned counsel for the claimant submitted that the injured was in hospital for nearly two months and lost his income during the treatment period and four months thereafter. The Tribunal ought to have awarded compensation for atleast six months loss of income.

7.Per contra, the learned counsel appearing for the Insurance Company submitted that the claimant suffered injury which are not mentioned in the schedule. The same was well treated and got united. There is no evidence to show that the fracture malunited after treatment. The Tribunal has given its logical reasoning based on the medical evidence and guidelines while assessing the disability. The evidence of P.W.2 and the disability Certificate Ex.P10 given by him are not based on any proper examination of the claimant. No X-ray was filed to show that the claimant sustained comunited fracture and the same malunited after surgery. Further, P.W.2 is not the doctor who treated the claimant. No doctor from Hindu Mission hospital which treated him examined as witness.

8. On hearing both the learned counsels and considering the evidence, this Court finds that reasoning given by the Tribunal for disbelieving the evidence of P.W.2 and his Certificate Ex.P10 is wholly justifiable. The assessment of disability by P.W.2 is contrary to the medical evidence and guidelines. The injury as mentioned in the discharge certificate does not indicate that the said injury will lead to any f