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Judgment
K. Govindarajulu
The claimant in MVC. No. 104/2003 on the file of the Additional MACT Karwar is the appellant. The parties will be referred according to their ranking before the MACT for convenience.
The case of the claimant is that on 6.11.2002 at 7.45 a.m., he was moving towards Baithkol from Chittakula side on his bicycle. While he was so moving, the driver of the Maruthi Omni bearing registration No. KA-19/M-2974 has driven the Maruthi Omni rashly negligently and dashed against the appellant. It resulted in accident and injuries to the claimant. For the pain, suffering and agony seeks for compensation.
The Insurance Company has entered appearance, deny the accident pleaded call upon the petitioner to prove the accident.
The learned Member of the Tribunal has framed issues, permitted the parties to lead evidence. P.W. 1 examined is the claimant. P.W. 2 is the Doctor who certifies the disability at 10%, P.W. 3 is the second Doctor who certifies the disability at 35% to the body. The learned Member of the Tribunal has accepted the evidence of P.W. 2, quantified the disability at 10%, fixed the compensation at Rs. 1,80,800/-. The same is challenged by the claimant in this appeal.
Heard both the sides.
The learned Advocate for the claimant supporting the case of the claimant places reliance on the evidence of P.W. 3, contend that he is a qualified Doctor. Qualified Doctor having spoken to and certifying the injury, resulting in 35% disability, the claimant is entitled for enhancement of compensation, so seek for enhancement.
On the other hand, the learned Advocate for the Insurance Company contend that after the evidence of P.W. 2, the claimant has come up in appeal to this Court by way of a Writ Petition in W.P.No.24448/2005. This Court has decided the writ on 6.12.2005, has opined that the petitioner/claimant herein is at liberty to lead further evidence. It is thereafter further evidence is adduced. While adducing further evidence in such a situation though the evidence of P.W. 2 equally qualified Doctor who has examined the injured treated the injured, being available, why his evidence has to be disbelieved should be placed on record, no such evidence is placed, evidence of P.W. 2 would prevail, so support the reasoning of the learned Member of the Tribunal seek for dismissal of the appeal.Carefully considered the material submission. The accident is admitted, actionable negligence is not disputed. In regard to the quantum of compensation, this Court in W.P.NO.24448/2005 has given liberty to the claimant to lead further evidence. It is only thereafter P.W. 3 is examined. P.W. 2 and 3 are both Doctors. P.W. 2 certifies the disability at 10% whereas P.W. 3 certifies the disability at 35%. In this backdrop of the assessment of disability, the Court is obliged to peruse the wound certificate as per Ex. P.2. The wound certificate discloses fracture of right tibia and fibula. So, the assessment of the disability by P.W. 2 is nearer the truth. The assessment of disability by P.W. 3 is exaggerated version. Exaggerated version being eschewed, the Court is of the considered opinion that the submission of the learned Advocate for the appellant cannot be accepted. One more reason to reject the contention is that appreciation of the disability is not a mathematical calculation but the disability has to be assessed based on the occupation of the claimant. The claimant herein is a labourer, sustained injuries while moving in a vehicle, no material is placed by the claimant to probablize that he having lost earning capacity after the accident. So, there is no merit in the appeal. Appeal is dismissed.