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Judgment
M.FA.No. 1298/2002 is filed by the Insurance Company and M.F.A.No. 1483/2002 is filed by the claimant challenging the judgment and award passed in MVC No. 116/99 by the Prl. Civil Judge (Sr. Dn.) CJM @ MACT, Kolar. The Insurance Company is challenging the quantum of compensation awarded by tide tribunal. The claimant has filed the appeal being not satisfied with the compensation awarded by the tribunal requesting the Court to enhance the compensation. In the circumstances, both the cases are heard together.
The claimant - Thamanna is a B.E. Graduate aged about 35 years is a civil contractor. He was travelling in a Maxi cab bearing registration No. KA-07/2494 on 10.9.97 at about 11.00 a.m. When the maxi cab reached Kalahestipura Gate in between Mulbagal and Kolar, the driver of the maxi cab dashed against on coming Tractor. Trailer, due to which the claimant sustained grievous injuries. He was shifted to the Government Hospital, Mulbagal for treatment and thereafter to two other hospitals. The tribunal considering his evidence and evidence of the doctor, awarded compensation of Rs. 10,000/- under the head pain and suffering, Rs. 20,000/- towards lose of amenities and enjoyment of physical comforts, Rs. 30,000/- towards medical expenses, and Rs. 4,50,000/- under the head loss of future income, in all Rs. 5, 10,000/- with interest out 9% p.a.
In the claim petition, it is stated by the claimant that he sustained the fracture of left foot and fracture of metatarsal of 4th and 5th. According to the claim petition, he was admitted to Devaraj Urs Medical College Hospital, Tamaka, Kolar, as an inpatient for a period of one month and an operation was conducted on his broken leg and discharged with plaster of Paris. According to the claim petition, as a contractor he was getting and income of Rs. 10,000/- per month. But contrary to the pleadings, the claimant is his evidence deposed that immediately after taking treatment at Government Hospital, Mulbagal, and thereafter he was shifted to Suguna Nursing Home at Kolar. He has produced medical bills to the tune of Rs. One lakh and odd from Suguna Nursing Home. The tribunal disbelieving the evidence of the claimant, as there was a variation between the pleadings and evidence, awarded only Rs. 30,000/- towards medical expenses, Rs. 20,000/- towards loss of amenities, Rs. 10,000/-towards pain and suffering. However Rs. 4,50,000/- is awarded under the head future loss of income.
Having heard the learned Counsel for both the parties in troth the appeals, we have noticed that the appeal filed the Insurance Company is not maintainable, since the application filed by it u/s 170 of the Motor Vehicles Act before the tribunal was rejected. Therefore, the appeal of the Insurance Company has to be dismissed in limine, as not maintainable.
So far as the appeal filed by the claimant seeking enhancement of compensation is concerned, we have already noticed that the evidence of the claimant cannot be believed to the full extent, since there is variation between pleadings and the evidence. The tribunal has rightly rejected the contention in regard to the treatment taken by him at Suguna Nursing Home, Kolar. The petitioner has also not examined the doctor who really operated the petitioner and who could be the best witness to assess the disability. Even according to PW-2 - Dr. Shanmugam, there is Mal-Union 4th and 5th of the Meta-Tarsal of the left foot and there is a partial ankylosis of left hip joint and there is disability of 3096 to the left knee joint and 5% for left foot. There to with this disability, the assessment of PW-2 that there 90% disability to the effected limb and 75% to the whole body is incorrect.
Therefore, we are of the opinion that the compensation awarded under the head future loss of earning at Rs. 4,50,000/- is on a higher side. Even if the contention of the appellant that the amount of compensation awarded under the other heads are on lower side, considering the quantum of compensation awarded under the head loss of future income which is on higher side, we do not see any justification to enhance the compensation.
In the result both the appeals are dismissed. The judgment and award of the tribunal are confirmed. The amount if any, deposited is ordered to be sent to the tribunal.