H.P. Sandesh, J. - The claimant has filed this Miscellaneous First Appeal, challenging the Judgment and Award dated 13.10.2009 passed in M.V.C. No.413/2008 on the file of the Principal Civil Judge [Sr. Dn.], MACT-IV, Danvanagere, questioning the quantum of compensation and also fastening the liability on the insured.

2. The claimant in the claim petition before the Tribunal contends that the accident occurred on 30.01.2008. After completing his painting work at B.Chittanahalli, with an intention of returning to Davanagere he was standing near the bus stop of Chittanahalli at about 6.30 p.m. and at that time, respondent No.1 being the driver of TATA Indica car bearing reg. No14/B-3366 by driving in rash and negligent manner dashed against the petitioner and due to the impact, he sustained fracture over his left wrist and also sustained grievous injuries all over the body. It is also his contention that he was earning Rs.12,000/- p.m. and now he is unable to work due to the disability.

Respondent No.2-Insurance Company took the defence that the Company is not liable to pay the compensation as the driver of the offending vehicle has not having valid and effective driving license.

Respondent No.1-owner of the offending vehicle has also filed the written statement contending that the accident is due to unmindful act of the claimant himself and hence, the very claim is not maintainable.

The claimant in support of his claim examined himself as P.W.1 and also examined the Doctor as P.W.2 and got marked the documents Exs.P1 to 9. On the other side, the respondents examined two witnesses as R.Ws.1 and 2.

The Tribunal after considering both the oral and documentary evidence on record, awarded compensation of Rs.16,960/- with interest at 6% p.a. and dismissed the claim petition against the Insurance Company and held that respondent No.1-owner of the offending vehicle is liable to pay the compensation.

3. Being aggrieved by the said Judgment and Award, the claimant has preferred this Miscellaneous First Appeal, contending that the Tribunal has committed an error in fastening the liability on the insured instead of respondent No.2-Insurance Company and the compensation awarded on all the heads are very meagre and it requires interference by this Court and the Judgment and Award needs to be modified by fastening the liability on the insurer by enhancing the compensation.

4. Learned counsel appearing for the appellant/claimant in his argument vehemently contended that the Tribunal did not appreciate both the oral and documentary evidence in right perspective and while discussing, in para No.13 of the Judgment with regard to nature of driving license has come to the conclusion that there was no valid and effective driving license and the driver having license to drive L.M.V. In support of his contention, he contends that in view of the recent Judgment of the Honble Apex Court in Mukund Dewangan VS. Insurance Company Limited reported in, (2017) AIR SC 3668, the liability has to be fastened on the Insurance Company. The Tribunal also committed an error in granting major compensation and the same has to be enhanced.

Per contra, learned counsel appearing for the insured contends that the Tribunal has to take into consideration the oral and documentary evidence on record and while awarding compensation taken note of nature of the injuries sustained by the appellant and awarded just and reasonable compensation. The disability assessed by Doctor-P.W.2 was 10 - 15% in respect of particular limb and hence, the Tribunal taken disability at the rate of 3% to the whole body, which also does not require any interference.

5. Learned counsel appearing an behalf of the insurer contends that the Tribunal has considered the material and passed reasoned order and doesnt require any modification.

6. After having heard the arguments of the claimant/appellants counsel and also the respondents counsel, the points that arise for my consideration are:

1) Whether the Tribunal has committed an error in fastening the liability on the insured instead of the insurer

2) Whether the Judgment and Award of the Tribunal requires modification as contended by the claimants counsel in enhancing the compensation

7. Regarding Point No.1: On perusal of the factual matrix of the case, it is the contention of the claimant that he was standing near the bus stop after completing his painting work and at that time, the driver of the car came in rash and negligent manner and caused the accident. Occurrence of the accident is not in dispute. The only contention is that the driver of the offending vehicle was not having the valid and effective driving license. Respondent No.2/Insurance Company also examined the witnesses as R.Ws.1 and 2 and got marked document B-Extract as Ex.R1 and the Tribunal after considering B-Extract comes to the conclusion that the driver of the offending vehicle was not having valid and effective driving license .

8. Now the question before this Court is that the vehicle which was involved in the accident is L.M.V. transport vehicle and the driver of the said vehicle was not having transport driving endorsement. As it was rightly pointed out by learned counsel for the appellant that in view of recent Judgment of the Honble Apex Court in Mukund Dewangan VS. Insurance Company Limited case, the liability has to be fastened on the Insurance Company and hence, the Judgment and Award of the Tribunal requires to be modified insofar as the liability is concerned, hence fastened the liability on the insurer instead of insured.

9. Regarding Point No.2: Now, with regard to the question of compensation, the main contention of the claimant is that income of the claimant was taken only as Rs.3,000/- p.m. by the Tribunal as he was a painter and was earning Rs.12,000/- p.m. In support of his claim, he has not produced any document before the Court that he was earning Rs.12,000-00 p.m. However, in the complaint he has mentioned that he was working with one Sri. Raju and was doing painting work. The said document came into existence immediately after the accident i.e., on 01.02.2008 and the accident was occurred on 30.01.2008 and the Tribunal ought to have taken note of nature of the job of the claimant. The Tribunal taken only Rs.3,000/- p.m. as the income of the claimant while calculating the loss of income. The accident occurred in the year 2008 and considering the avocation of the claimant as painter the Tribunal ought to have taken notional income as Rs.5,000/- p.m. Hence, I have taken the income of the claimant as Rs.5,000/- p.m.

10. On perusal of the material, though the claimant sustained fracture as per Ex.P5-wound certificate, which reveals that he sustained fracture of radius, he has not taken any treatment as an in-patient in any of the hospital immediately after the accident, however he took treatment as an out-patient and the Tribunal while considering the quantum of compensation, in para No.15 of the Judgment discussed in detail and taken Rs.100/- per day as the earning of the claimant. The Tribunal also taken the disability as 3% considering the evidence of the Doctor, who has examined as P.W.2 and relying on the contents of Ex.P8-Disability Certificate. P.W.2 in his evidence says that there is 10-15% disability in respect of the left forearm but, no reasons are assigned by the Tribunal as to why it has taken 3% disability and failed to take note of the fracture of radius. Even though the doctor says 10-15% disability to the left forearm, the Tribunal failed to take note of nature of the job of the claimant, who is a painter and in order to do pointing work, upper limb is the proper limb to do effective work. Hence, I am of the opinion that instead of taking 3% the Tribunal ought to have taken 8% of the disability.

11. For having taken the disability as 8%, reconsidering the income of the claimant at Rs.5,000/- p.m. and applying relevant multiplier 12, the compensation under the head loss of future earning would be;

Rs.5,000 x 8% x 12 x 12 = Rs.57,600/-

12. The Tribunal has awarded an amount of Rs.3,000/- on the head pain and sufferings. This is the accident of the year 2008 and when the claimant has suffered fracture of radius, it requires minimum 2 to 3 months for uniting the fracture. The Tribunal ought to have considered the same. Hence, on the head of pain and sufferings the aforesaid amount is enhanced to Rs.20,000/-. The loss of income is concerned, the laid-up period is for about 3 months, which comes to Rs.15,000/-, the same is awarded. The Tribunal has awarded only Rs.1,000/- towards nutritious food. Admittedly, the claimant has not taken treatment as an inpatient in the hospital but, it is contended that he has taken treatment as an out-patient. Hence, I do not find any reason to interfere with the Judgment and Award of the Tribunal with regard to enhancement in that regard.

13. The claimant has suffered disability of 8%. When such being the case, the claimant who was aged about 40 years has to lead his rest of life with 8% disability and hence, it is appropriate to award a sum of Rs.15,000/- on the head loss of amenities. The claimant has not produced any medical bills before the Tribunal and hence, the Tribunal has not considered the medical expenses.

14. In view of the discussion made above, I pass the following:

ORDER

The appeal is allowed in part. The liability is fastened on the insurer instead of insured.

The Judgment and Award of the Tribunal is modified enhancing the compensation from Rs.16,960/- to Rs.1,08,600/-. With interest at the rate of 6% p.a. Respondent No.2-Insurance Company is directed to deposit the aforesaid amount within 6 [six] weeks from the date of receipt of copy of this order.