JUDGMENT M.F.A. No. 12852 of 2006 is filed by the Insurance Company challenging the quantum and also the liability. M.F.A. No. 13192 of 2006 is filed by the claimant seeking enhancement of the compensation awarded in M.V.C. No. 1481 of 2006 by the Additional Motor Accident Claims Tribunal (SCCH-6), Bangalore, dated 23-8-2006. 2. In the circumstances by consent of both the parties these two appeals are heard together. 3. On 12-2-2006 at about 5.00 p.m. the claimant was crossing Bangalore-Mysore Road in front of Gurushri Bar and Restaurant, Rengeri. At that point of time, the driver of motor cycle bearing No. KA 41E 3109 driving the same in a rash and negligent manner dashed against the petitioner, due to which he sustained grievous injuries. He was immediately shifted to Sahana Hospital, Kengeri and thereafter he was shifted to Victoria Hospital and again admitted to Mathru Nursing Home. According to the claimant, he has spent sufficient amount towards medical expenses and that due to the accident he has become permanently disabled and unable to discharge his duties as loader and unloader. The claimant was aged about 30 years on the date of the accident getting an income of Rs. 4,500/- per month. The claim was resisted both by the owner and the Insurance Company. According to them, the accident did not occur due to the rash and negligent driving of the driver of the motor cycle and it was due to the negligence on the part of the claimant since he was crossing the road without observing the traffic rules. It was contested by the owner and Insurance Company contending that there was no negligence on the part of the driver of the vehicle and it was solely due to the negligence on the part of the claimant in crossing the busy road in a negligent manner. After examination-in-chief of the claimant was over, the application under Section 170 of the Motor Vehicles Act, 1988 was filed by the Insurance Company seeking permission of the Court to defend the case on all grounds which are available to the insurer against whom the claim has been made. The Tribunal rejected the application of the Insurance Company on 17-7-2006 on the ground that the owner of the vehicle is contesting the case and is cross-examining the claimant. After completion of evidence of the claimant, one Dr. Kishore Kumar was examined as P.W. 2. The Tribunal rejected the application of the Insurance Company on 17-7-2006 on the ground that the owner of the vehicle is contesting the case and is cross-examining the claimant. After completion of evidence of the claimant, one Dr. Kishore Kumar was examined as P.W. 2. When the case was posted for cross-examination of P.W. 2, since the Counsel for the owner was not present, permission was granted to the Insurance Company to cross-examined P.W. 2. On behalf of the Insurance Company one Vinaykumar was examined as RW.1. The Tribunal after considering the evidence let-in by the parties held that the petitioner has proved that the accident occurred on 12-2-2006 at about 5.00 p.m. in front of Gurushri Bar and Restaurant, Kengeri, due to rash and negligent driving on the part of the rider of the motor cycle and also awarded compensation of Rs. 3,38,074/- under different heads along with interest at 6% p.a. This judgment and award is called in question by the Insurance Company on the ground that the Tribunal has committed a serious error in fixing the liability on the Insurance Company by holding that the accident occurred due to rash and negligent driving of the rider of the motor cycle. 4. According to the learned Counsel for the appellant, the accident occurred due to negligence on the part of the claimant who has consumed alcohol and was under the influence of alcohol and without observing the on coming vehicles suddenly crossed the road. He contends that the compensation awarded on different heads are also on higher side. 5. The claimant has filed the appeal seeking enhancement of the compensation on the ground though the Doctors have given the evidence that the claimant is suffering from disability of 65% to the right lower limb, has taken the disability of 33% to the whole body without considering the functional disability caused to the claimant. According to him, the claimant was a loader. The disability caused to him have been assessed at 33% to the whole body. If the Tribunal had considered the functional disability, it should have considered the functional disability at 100% since he cannot discharge his duties as loader and unloader. He further contends that the compensation awarded under the head, pain and suffering in a sum of Rs. The disability caused to him have been assessed at 33% to the whole body. If the Tribunal had considered the functional disability, it should have considered the functional disability at 100% since he cannot discharge his duties as loader and unloader. He further contends that the compensation awarded under the head, pain and suffering in a sum of Rs. 20,000/- is on lower side considering that he sustained fracture of right femur and fracture of both the bones and right leg and that he was in hospital for 27 days and thereafter also he was under treatment. Therefore, he requests the Court to enhance the compensation reasonably under the head, pain and suffering and under the head future loss of income and also on other heads. 6. The learned Counsel appearing for the claimant further submits that the appeal filed by the Insurance Company is not maintainable since the application filed by the Insurance Company under Section 170 of the M.V. Act was rejected by the Tribunal in view of the contesting of the claim petition by the owner of the vehicle. Therefore, he requests the Court to dismiss the appeal filed by the Insurance Company. 7. Per contra, the learned Counsel appearing for the Insurance Company contends even though the application filed under Section 170 ofthe M.V. Act was rejected on 17-7-2006 on the ground that the owner has filed the written statement and cross-examined the claimant since the owner did not cross-examine the Doctor who has been examined as P.W. 2. As the Tribunal has permitted the Insurance Company to cross-examine and let-in evidence, this Court has to consider that there is a deemed permission under Section 170 of the M.V. Act. Therefore, he requests this Court to consider the appeal on merits. 8. Having heard the learned Counsel appearing for both the parties, the following points would emerge for consideration of this Court in this appeal: (1) Whether the Insurance Company can maintain an appeal when an application filed by it under Section 170 of the M.V. Act was rejected by the Tribunal? (2) Whether the Insurance Company can entertain an application under Section 170 of the M.V. Act for the second time? (3) Whether the compensation awarded by the Tribunal is just and proper and does it require enhancement? 9. (2) Whether the Insurance Company can entertain an application under Section 170 of the M.V. Act for the second time? (3) Whether the compensation awarded by the Tribunal is just and proper and does it require enhancement? 9. So far as the first point is concerned, it is fairly admitted by the learned Counsel appearing for the Insurance Company that an application was filed by the company under Section 170 of the M.V. Act and the same was rejected by the Court on 17-7-2006 on the ground that the owner of the vehicle is contesting the case since he has filed the statement of objection and cross-examined the claimant. The certified copy of the order sheet is also produced before us. From the perusal of the order sheet dated 17-7-2006, it is clear that such an order has been passed by the Tribunal rejecting the application. From the perusal of the deposition we have seen that the Tribunal has permitted the Insurance Company to cross-examine P.W. 2 who has been examined to show the disability caused to the claimant. But the question that arises for consideration for us is whether there is a deemed permission granted to the Insurance Company, whether this Court can hold that there is a deemed permission under Section 170 of the M.V. Act in favour of the Insurance Company only because a permission has been granted to cross-examine the Doctor by the Insurance Company even though an application under Section 170 of the M.V. Act is rejected. 10. It is not in dispute that if an application is rejected under Section 170 of the M.V. Act by the Tribunal holding that the owner of the vehicle is contesting the case effectively. If for any reason the Insurance Company was of the opinion that subsequently only to support the claimant, owner and his Counsel have absented themselves from contesting the case and allowed the claimant to lead the medical evidence to get more compensation, in such circumstances, there was no bar for the Insurance Company to make one more application under Section 170 of the M.V. Act requesting the Tribunal to consider such application taking into consideration the subsequent developments. 11. In the instant case, such a procedure is not followed by the Insurance Company after the rejection of the application. 11. In the instant case, such a procedure is not followed by the Insurance Company after the rejection of the application. When P.W. 2 was examined, the Counsel for the owner was not present to cross-examine the Doctor. In such circumstances, the Tribunal has permitted the Insurance Company Lawyer to cross-examine the Doctor who was present before the Court. Mere granting permission to cross-examine a witness, the Insurance Company cannot contend that there is a deemed permission under Section 170 of the M.V. Act. A permission under Section 170 of the M.V. Act has to be passed by a Tribunal after considering the facts and circumstances of the case and such application is required to be allowed after assessing the case objectively. A mere allowing the application without application of mind cannot be treated to be permission under Section 170 of the Act. Our reasoning is supported by a judgment of this Court in the case of Branch Manager, New India Assurance Company Limited, Pune v Dharmanna and Others I , wherein one of us, namely Jawad Rahim, J., has stated that while considering the application under Section 170 of the MV. Act, the Tribunal must objectively assess the material placed by the insurer and that the Tribunal has got a right to pass an order considering the circumstances enumerated in clauses (a) and (b) of Section 170 of the M.V. Act and if such circumstances are not available, the application under Section 170 of the Act has to be dismissed on merits. 12. In the light of the above observations made in the aforesaid judgment by one of us, we are of the opinion that in the instant case, the Tribunal without application of mind has only permitted the Counsel for the Insurance Company to cross-examine P.W.2. Therefore, there is no provision under the M.V. Act known as deemed permission. Permission under Section 170 of the M.V. Act shall be in writing after assessing the material placed objectively by the Tribunal. In the circumstances we are of the opinion that there is no deemed provision under Section 170 of the M.V. Act. 13. Therefore, there is no provision under the M.V. Act known as deemed permission. Permission under Section 170 of the M.V. Act shall be in writing after assessing the material placed objectively by the Tribunal. In the circumstances we are of the opinion that there is no deemed provision under Section 170 of the M.V. Act. 13. Then the next question to be considered by us in the circumstances is that if an application under Section 170 of the M.V. Act is rejected by the Tribunal once whether the Insurance Company is debarred from filing another application under Section 170 of the M. V. Act. So far as this point is concerned even if an application under Section 170 of the M.V. Act is rejected earlier, if the circumstances compels the Insurance Company to make one more application due to subsequent development there is no inherent lack of jurisdiction to invoke provisions of Section 170 of the M.V. Act, requesting the Tribunal to grant such permission bringing to the notice of the Tribunal about the subsequent developments. If for any reasons, the Tribunal comes to the conclusion that the owner in collusion with the claimant fails to prosecute the case further and if such circumstances wan-ants the Insurance Company to file an application under Section 170 of the M.V. Act, considering the subsequent developments, it is always open for the Tribunal to grant such permission. In the instant case, such an application has not been made by the Insurance Company. When such an application is not filed, the Insurance Company cannot challenge the quantum of compensation fixed on it by filing an appeal since the liability is admitted. Therefore, the appeal filed by the Insurance Company has to be dismissed. 14. Then the next point to be considered by us is whether the compensation awarded by the Tribunal is just and proper. It is not in dispute that in the instant, the claimant has sustained fracture of right femur and fracture of both the bones of right leg. He was in hospital for 63 days in different hospitals and thereafter also he has taken treatment. Twice he underwent surgery. He is required to undergo one more surgery for removal of nail. The Tribunal has awarded a sum of Rs. 25,000/- under the head, pain and suffering. The accident is of the year 2006. He was in hospital for 63 days in different hospitals and thereafter also he has taken treatment. Twice he underwent surgery. He is required to undergo one more surgery for removal of nail. The Tribunal has awarded a sum of Rs. 25,000/- under the head, pain and suffering. The accident is of the year 2006. Considering the date of the accident and nature of injuries sustained by the claimant and the surgeries conducted on him, we are of the opinion; the Tribunal has committed an error in awarding only a sum of Rs. 25,000/- under the head, pain and suffering. According to us, the claimant is entitled for a sum of Rs. 40,000/- under the head, pain and suffering. Before the Tribunal, the claimant has produced the medical bills of Rs. 88,874/-. The Tribunal has awarded a sum of Rs. 88,874/- under the head, medical expenses, Rs. 10,000/- under the head, conveyance and nourishment. In all, Rs. 98,874/- is awarded under this head. He was an in patient for more than two months. We have to consider the probable amount spent by him towards conveyance, attendants charges and nourishment during his hospitalization. Therefore, under the head, medical expenses, conveyance and attendant's charges, we are inclined to award a sum of Rs. 1,25,000/- put together. He was suffering disability of 65% to his right lower limb and 33% to the whole body. He was aged about 30 years on the date of the accident. The Tribunal has awarded a sum of Rs. 20,000/- under the head, loss of amenities in life. Considering the nature of avocation and his age, we are inclined to award of Rs. 30,000/- under the head, loss of amenities in life. The Tribunal has awarded a sum of Rs. 10,000/- under the head, future medical expenses. Since he has to undergo one more operation, the amount awarded under this head is inadequate, we are inclined to award Rs. 20,000/- under the head, future medical expenses. The claimant has stated that he was earning Rs. 4,500/- per month. But consistently this Court is assessing the income of a coolie in Bangalore at Rs. 100/- per day and Rs. 3,000/- per month. If it is so for a period of five months we have to award a compensation of Rs. 15,000/- under the head loss of income during the period of treatment. 4,500/- per month. But consistently this Court is assessing the income of a coolie in Bangalore at Rs. 100/- per day and Rs. 3,000/- per month. If it is so for a period of five months we have to award a compensation of Rs. 15,000/- under the head loss of income during the period of treatment. Though the Tribunal has assessed the future loss of income taking into consideration 33% as disability, considering the functional disability we are inclined to consider the future loss of income at 50%. If it is so, the future loss of income per month has to be arrived at Rs. 1,500/- p.m. and Rs. 18,000/p.a. Applying the multiplier of 16, we have to award a sum of Rs. 2,88,000/- under the head, future loss of income. 15. Thus, in all the claimant is entitled for a sum of Rs. 5,18,000/-. 16. In the result, M.F.A. No. 12852 of 2006 is hereby dismissed. M.F.A. No. 13192 of2006 is hereby allowed enhancing the compensation from Rs. 3,38,074 to Rs. 5,18,000/- with interest at 6% p.a. Out of the enhanced compensation a sum of Rs. 1,50,000/- with proportionate interest shall be invested in the name of the claimant for a period of 5 years granting permission for him to withdraw the periodical interest. Rest of the amount be released to the claimant.