JUDGMENT : B. Veerappa, J. 1. MFA No. 6787/2018 has been filed by the Insurance Company for reduction of compensation. MFA No. 7620/2018 has been filed by the employee for enhancement against the judgment and award dated 07.06.2018 in ECA No. 26/2016 before the Motor Vehicles Accident Claims Tribunal, Bengaluru awarding the total compensation of Rs. 4,93,578/- with interest at the rate of 12% p.a. from the date of accident i.e. on 25.01.2015 till its realization. 2. The claimant has filed the claim petition under Section 22 of the Employee's Compensation Act, 1923 (for brevity "the Act") claiming compensation of Rs. 10,00,000/- for the injuries sustained by him during the course of employment. 3. It is the case of the claimant that on 25.01.2015 at about 9.00 p.m. when the claimant was driving tempo bearing Reg. No. KA-43-5815 on Doddaballapura Chikkaballapura road from Rajaghatta towards Kanchinahala, near lake side road, at that time, the trailer bearing Reg. No. AP-03-T-7627 attached to unregistered tractor, came from opposite side and dashed against the tempo, due to which, the claimant sustained grievous injuries. At the time of accident, he was working as driver and was earning Rs. 10,000/- monthly wages and bata of Rs. 100/- per day. Due to the injuries sustained in the accident, he has became permanently disabled and unable to work as a driver or to do any other manual work and sustained loss of his earnings. Therefore, he filed a claim petition. 4. He further contended that the jurisdictional police have registered a criminal case against the driver of the trailer and the employer respondent Nos. 1 and 2, who is an employer themselves are liable to pay the compensation. 5. In spite of service of notice, respondent No. 1 did not appear before the Tribunal and was placed ex-parte. Respondent No. 2 Insurance company filed the objections denying all the allegations made in the claim petition and has stated that the claimant was not a workman under respondent No. 1 and there is no relationship of employer and employee between respondent No. 1 and the claimant. Therefore, the question of awarding compensation would not arise. It has denied issuance of policy in respect of the vehicle in question but however, contended that its liability, if any, is subject to terms and conditions of the policy. Therefore, sought for dismissal of the claim petition. 6. Therefore, the question of awarding compensation would not arise. It has denied issuance of policy in respect of the vehicle in question but however, contended that its liability, if any, is subject to terms and conditions of the policy. Therefore, sought for dismissal of the claim petition. 6. Based on the aforesaid pleadings, the Tribunal has framed the following the issues: 1. Whether the petitioner proves that he was an employee/workman under 1st respondent as per the Act as on the date of accident? 2. Whether the petitioner proves that he had sustained injuries in the course of his employment under 1st respondent as driver of tempo bearing Regn. No. KA-43- 5815? 3. Whether the petitioner proves that he was aged 22 years and getting Rs. 10,000/- per month plus bata of Rs. 100/- per day at the time of accident? 4. Whether the petitioner proves that he is entitle for compensation as claimed? If so, to what extent and from whom? 5. What order or award? 7. In order to establish the case of the claimant, the claimant got examined himself before the Tribunal as PW-1 and examined the Doctor as PW-2 and got marked the documents at Ex.P1 to P13. Respondent No. 2 Insurance Company got examined its Assistant Manager as RW-1. 8. The Tribunal considering the entire materials on record, has recorded the findings that the claimant has proved that as on the date of the accident, he was an employee under respondent No. 1 as per the provisions of the Act and also proved that the injuries sustained by him arising out of and during the course of employment under respondent No. 1 and also recorded the findings that the claimant was earning Rs. 8,000/- p.m. Accordingly, the impugned judgment and order came to be passed by the Tribunal awarding a total compensation of Rs. 4,93,578/- with interest at the rate of 12% p.a. from the date of accident till its realization. Hence, the insurance company has filed the appeal for reduction of the compensation and claimant has filed the appeal for enhancement. 9. I have heard the learned counsel for the parties to the lis. 10. Sri. 4,93,578/- with interest at the rate of 12% p.a. from the date of accident till its realization. Hence, the insurance company has filed the appeal for reduction of the compensation and claimant has filed the appeal for enhancement. 9. I have heard the learned counsel for the parties to the lis. 10. Sri. Pradeep B. learned counsel for the Insurance Company has contended that the impugned order passed by the Tribunal awarding compensation under the head of Pain and Sufferings, conveyance, food and nourishment is erroneous and is impermissible under the provisions of the Act. He further contended that the compensation awarded by the Tribunal is liable to be set aside and contrary to the materials on record. 11. He further contended that the Tribunal has erred in not noticing the wound certificate produced by the claimant wherein, it has been clearly depicted as "RTA hit by two wheeler v/s four wheeler." It clearly depicts that the insured vehicle was not at all involved in the alleged accident and the Tribunal was not justified in taking the disability of the claimant at 17% in the absence of any evidence. Therefore, he sought to allow the appeal by modifying the impugned judgment and order and sought to dismiss the appeal filed by the claimant. 12. Per contra, Sri. Suresh M Latur, learned counsel for the claimant contended that the compensation awarded by the Tribunal is on lower side. Further, it is contended that the Tribunal has erred in awarding Rs. 12,940/- towards medical expenses. He further contended that the Tribunal was not justified in taking the disability at 17% though the Doctor - PW-2 has advised that the claimant cannot work as a driver and cannot do any other physical/manual work. Therefore, he sought to allow the appeal filed by the claimant by modifying the impugned judgment and order and sought to dismiss the appeal filed by the Insurance company. 13. This Court admitted the appeals to consider the following substantial question of law: 1. Whether the Tribunal is justified in awarding the compensation towards pain and sufferings, conveyance, food and noursihment when the claimant made a claim petition under Section 22 of the Act? 2. 13. This Court admitted the appeals to consider the following substantial question of law: 1. Whether the Tribunal is justified in awarding the compensation towards pain and sufferings, conveyance, food and noursihment when the claimant made a claim petition under Section 22 of the Act? 2. Whether the Tribunal is justified in taking the whole body disability at 17% when PW-2 the Doctor, who stated on oath that the claimant cannot work as driver and he cannot do any other manual work under the facts and circumstances of the present case? 14. Having heard the learned counsel for the parties, it is undisputed fact that the claimant was working under respondent No. 1 in MFA No. 6787/2018 as a driver of tempo bearing Regn. No. KA-43-5815 and he has sustained fracture of his right femur and other injuries to all over the body on account of the rash and negligent driving of the trailer bearing Regn. No. AP-03-T-7627 arising out of and during the course of his employment under respondent No. 1. The same is evidenced by the material documents as per Exs.P1 to P6 issued by the concerned Officials during the course of their official duty and presumption has to be drawn under Section 114 of the Indian Evidence Act, 1872. 15. It is the specific case of the claimant, who got examined himself as PW-1, who has stated on oath that he was earning wages at Rs. 10,000/- p.m. and bata of Rs. 100/- per day, but the Tribunal has proceeded to take the monthly wages of the claimant at Rs. 8,000/- taking into consideration of the fact that the accident occurred on 25.01.2015 in view of the provisions of Section 4(1B) of the Act. While considering the materials on record, the Tribunal has proceeded to take the income/monthly wages of the claimant at Rs. 8,000/- and deducting 60% in terms of the provisions of Section 4(1)(b) of the Act. While calculating, the Tribunal has proceeded to take the disability at 17% ignoring the fact that the Doctor - PW-2, who is a qualified medical practitioner has stated on oath that the claimant has suffered disability of 34.38% of right lower limb and has taken half i.e. 17% to the whole body. While calculating, the Tribunal has proceeded to take the disability at 17% ignoring the fact that the Doctor - PW-2, who is a qualified medical practitioner has stated on oath that the claimant has suffered disability of 34.38% of right lower limb and has taken half i.e. 17% to the whole body. In view of these disabilities, it is difficult for the claimant to work as a tempo driver and also difficulty for him to do any other manual/physical work, the Tribunal ought to have taken into consideration the evidence adduced by the qualified medical practitioner that the fracture sustained by the claimant i.e. fracture of right femur, trochanteric fracture and other injuries all over the body. 16. Having regard to the nature and fractures sustained and other injuries suffered by the claimant, the Tribunal ought to have taken the disability at least, at 30% in view of the evidence of the qualified medical practitioner as contemplated under the provisions of Section 4(1)(c)(ii) of the Act. While calculating the compensation, the monthly wages of the claimant is to be taken at Rs. 8,000/- in view of the provisions of Section 4(1B) of the Act and as per the provisions of Section 4(1)(b) of the Act, 60% of wages has to be taken. 17. Then, the monthly wages comes to Rs. 4,800/- (Rs. 8,000 x 60%). Therefore, Rs. 3,18,772/- (Rs. 4,800/- x 30% x 221.37) would be the loss of future earning capacity and Rs. 12,940/- towards medical expenses. The total compensation would be Rs. 3,31,712/- with interest at the rate of 12% p.a. one month after the accident as against Rs. 4,93,578/- with interest at 12% p.a. 18. For the reasons stated above, the first substantial question of law framed in the appeal filed by the Insurance Company is answered in negative holding that the Tribunal is not justified in awarding the compensation towards Pain and sufferings, conveyance, food and nourishment under the provisions of the Act. The second substantial question of law is answered in negative holding that the Tribunal has not justified in taking the disability at 17% in view of the evidence of PW-2 and in view of the particular facts and circumstances of case, the claimant disability has to be assessed at 30% as stated supra. 19. The second substantial question of law is answered in negative holding that the Tribunal has not justified in taking the disability at 17% in view of the evidence of PW-2 and in view of the particular facts and circumstances of case, the claimant disability has to be assessed at 30% as stated supra. 19. For the reasons stated above, the appeal filed by the Insurance Company is allowed in part and the impugned judgment and order passed by the Tribunal dated 07.06.2018 in ECA No. 26/2016 is hereby modified and the claimant is entitled for a total compensation of Rs. 3,31,712/- with interest at the rate of 12% p.a. from the date of the accident as against Rs. 4,93,578/- with interest at the rate of 12% p.a. 20. Out of total compensation awarded at Rs. 3,31,712/- and 50% of compensation with interest shall be released in favour of the claimant and remaining 50% with interest shall be deposited in any nationalized bank for a period of five years and the claimant is entitled to received the quarterly interest periodically. 21. After deduction of the said amount, Rs. 3,31,712/- with interest at the rate of 12% after one month from the date of the accident, the remaining amount-in-deposit before this Court shall be released in favour of the appellant Insurance Company. 22. Since appeal filed by the insurance company for reduction of compensation is allowed in part consequently, the appeal filed by the claimant for enhancement is rejected. 23. Accordingly, appeals are disposed of.