JUDGMENT : These appeals are at the instance of the Insurance Company and the claimant calling in question the correctness of the judgment and award dated 11.6.2010 in MVC No.524/2008 passed by the learned MACT-X, Bellary (for short, ‘Tribunal’). 2. Brief facts insofar as the same are relevant for the purpose of adjudicating these appeals are that on 11.09.2007, the claimant-Nagappa was traveling in a passenger Auto-rickshaw bearing registration No.KA-34/8236 from Bagewadi village to Kakkabevinahalli via Tekkalakote and at about 11 a.m., while said Auto-rickshaw was passing near K.E.B. Grid on SH-19 road, on account of rash and negligent driving of the driver of Auto-rickshaw, it capsized and fell into a ditch on the left side of the road, resulting in grievous injuries to the claimant. 3. On claim petition being filed, respondent No.1 and 2 namely owner-insured of the vehicle and Insurance Company appeared through their respective counsel and respondent No.2-insurer filed its detailed statement of objections. 4. During trial, claimant examined himself as PW1 and one Orthopedic Surgeon was examined as PW4 and Exs.P1 to P166 were marked for the claimants. Respondent/Insurance Company examined one of its officials as RW1 and Ex.R1 to R5 were marked. 5. After hearing the learned counsel on both sides and perusing the records, the learned Tribunal allowed the claim petition in part awarding a compensation of Rs.3,40,000/- with interest thereon at 6% per annum from the date of petition till date of payment. 6. Sri. R.R. Mane, learned counsel appearing for the appellant/Insurance Company in support of his appeal vehemently contended that the Insurance Company is not liable to pay compensation amount and the award passed by the learned Tribunal to the said extent is erroneous inasmuch as there was violation of the material terms of policy of insurance as the Auto-rickshaw in question was plying in violation of permit condition and also there was overloading of passengers in the said Auto-rickshaw at the time of the accident. He submitted that even the quantum of compensation awarded in a sum of Rs.3,40,000/- is on the higher side and therefore, appeal filed by the Insurance Company is required to be allowed by dismissing the appeal of the claimant. 7. He submitted that even the quantum of compensation awarded in a sum of Rs.3,40,000/- is on the higher side and therefore, appeal filed by the Insurance Company is required to be allowed by dismissing the appeal of the claimant. 7. Per contra, learned counsel appearing for the appellant/claimant in support of his appeal contended that even if Auto-rickshaw is plied in violation of permit condition, the Insurance Company cannot be absolved from liability to pay compensation and therefore, effective order to be passed is for “Pay and Recover” in view of decision of the Hon’ble Apex Court in Amrit Paul Singh & Another Vs. Tata AIG General Insurance Company Ltd. & Others, (2018) 7 SCC 558 . He also submitted that even in cases of ‘overloading’, the Hon’ble Apex Court in United India Insurance Company Limited Vs. K.M. Poonam & Others, (2015) 15 SCC 297 has held that Auto-rickshaw being passenger auto, the insurance company is liable to pay compensation in respect of permitted number of passengers to be carried in the said vehicle and in regard to excess number of passengers, the Insurance Company is liable to pay compensation in the first instance and recover the same from the insured. Further, learned counsel for the claimant contended that the compensation awarded is on the lower side inasmuch as the claimant had suffered comminuted condyler fracture of left humerus resulting in permanent disability. He submitted that on the heads of compensation like pain and suffering, conveyance charges, nourishing food and loss of earning capacity, the compensation awarded is on the lower side and same is required to be enhanced. 8. I have carefully considered the submissions made on both sides and perused the records. 9. The factum of claimant/Nagappa suffering injuries in the alleged accident is not in question. 10. Learned counsel for the appellant/Insurance Company has seriously contended that the insured Auto was plying beyond permit granted to it, and therefore, the insurance company is not liable to pay compensation. 9. The factum of claimant/Nagappa suffering injuries in the alleged accident is not in question. 10. Learned counsel for the appellant/Insurance Company has seriously contended that the insured Auto was plying beyond permit granted to it, and therefore, the insurance company is not liable to pay compensation. The said contention of the learned counsel for insurer is not sustainable in view of decision of the Hon’ble Apex Court in Amrut Paul Singh’s, (2018) 7 SCC 558 case, where the vehicle in question was not even having any permit, the Hon’ble Apex Court has held that the Insurance Company is liable to pay compensation in the first instance and recover the same from the owner of the vehicle in the same proceedings. 11. Insofar as ‘overloading’ as contended by the learned counsel for the Insurance Company is concerned, the same is also no longer res-integra. The Hon’ble Apex Court in K.M. Poonam’s, (2015) 15 SCC 297 case has made it clear that in regard to passengers covered under the policy of insurance, the insurance company is wholly liable to reimburse the compensation and insofar as those who are not covered under the policy of insurance, the insurance company is not entitled to disclaim liability and it is liable to pay compensation in the first instance and thereafter recover the same from the insured person in the same proceedings. Therefore, the said contention of the learned counsel for the insurance company is not entitled to be upheld and it is accordingly, rejected. 12. In view of the contention of learned counsel for the insurance company that the compensation awarded is on the higher side and contrary submission made on behalf of the claimant that the award made is on the lower side, it is appropriate to have a revisit on the compensation awarded by the learned Tribunal. The case of the claimant is that he has suffered functional disability on account of injury suffered, he being a small time hotel businessman and agriculturist. Ex.P4 is Wound Certificate issued by Medical Officer, PHC, Tekkalakote and Ex.P144 is Discharge Summary issued by the Hosmat Hospital on 01.10.2007. Ex.P4 shows that the claimant had suffered comminuted fracture of left humerus. Ex.P144-Discharge Summary shows the following : DISCHARGE SUMMARY NAME: Mr. Nagappa AGE: 42 years SEX: Male HOSPITAL NO.183057 IP NO.38419 WARD:HSSH DATE OF ADM.: 11.09.2007 DATE OF DISCHARGE: 01.10.2007 CONSULTANT SURGEON: Dr. Ex.P4 shows that the claimant had suffered comminuted fracture of left humerus. Ex.P144-Discharge Summary shows the following : DISCHARGE SUMMARY NAME: Mr. Nagappa AGE: 42 years SEX: Male HOSPITAL NO.183057 IP NO.38419 WARD:HSSH DATE OF ADM.: 11.09.2007 DATE OF DISCHARGE: 01.10.2007 CONSULTANT SURGEON: Dr. Prabhu C. B. DIAGNOSIS: Operated complaints of fracture distal humerus left with bractial A injury PROCEDURE: 1. Vascular repair, Thrombectomy, Brachial a Repair and external fixator application left humerus on 12.09.07. 2. Wound debridment SSG left humerus on 18.09.07. 3. Wound inspection under Anaesthesia and unsuccessful attempt of close reduction attempt internal fixation left humerus done on 26.09.07. Since reduction was not possible it was left alone. HISTORY: Complaints of pain in left upper limb, bleeding from left upper limb. Inabilities to move left upper limb, alleged history of road traffic accident while traveling auto on Bellary and trauma to left elbow. The patient is not able to move this non left upper limb given then. No history of loss of consciousness/ vomiting/ consciousness. On Examination: - 42 years old male moderately built and nourished, Pulse – 88/min BP – 120/90mnr PR 24/h. Local examination upper limb normal upper limb operated, vascular repair and with soakage + external fixation in situ. INVESTIGATION: Reports enclosed. HOSPITAL COURSE: Patient god admitted for operated, progressed well and discharged. TREATMENT GIVEN: IV Supacef (19mg), IV Amikacin (500mg) Mero, IV Rantac, Inj, Fraciparine, Syp. Haemup. 13. Ex.P144 discloses that even though the accident had occurred on 11.09.2007, as on 01.10.2007, Expert in Hosmat Hospital found that the claimant was not able to close reduction of left humerus and it was left alone. Records show that the claimant had also taken treatment in VIMS Hospital, Bellary which had issued Ex.P8-Out Patient Book. Apart from the same, PW4 examined before the learned Tribunal who is one Dr. Venkateshulu, Professor of Orthopedic Surgery in VIMS Hospital, Bellary. He had issued Ex.P9-Disability Certificate. Since the fracture suffered is a comminuted one of left humerus, I am of the view that under the head of pain and suffering, Rs.40,000/- is required to be awarded. Learned Tribunal upon consideration of the medical bills has awarded a sum of Rs.1,50,000/- under the head of medical expenses and that requires to be maintained. Since the fracture suffered is a comminuted one of left humerus, I am of the view that under the head of pain and suffering, Rs.40,000/- is required to be awarded. Learned Tribunal upon consideration of the medical bills has awarded a sum of Rs.1,50,000/- under the head of medical expenses and that requires to be maintained. Since the claimant had undergone treatment in VIMS Hospital, Bellary and also Hosmat Hospital, Bengaluru, he being a resident of Bellary, he would have spent considerable amount under the head of conveyance charges, attendant’s expenses, nourishing food as he was in hospital for about three weeks as inpatient in Bangalore. Therefore, under the head of conveyance charges, it is necessary to award a sum of Rs.20,000/- and towards nourishing food and attendant charges, a sum of Rs.20,000/- is required to be awarded. 14. The next important question to be decided is, the compensation to be awarded under the head of loss of earning capacity which should take care of loss of future prospects as well in view of decisions of Hon’ble Apex Court in Jagadish Vs. Mohan & Others, (2018) 4 SCC 571 , Sandeep Khanuja Vs. Atul Dande, (2017) 3 SCC 351, Erudhaya Priya Vs. State Express Transport Corporation Limited, 2020 SCC Online SC 601 and also decision of Division Bench of this Court in New India Assurance Company Ltd. Vs. Abdul M. Tahasildar, [MFA 103807/2016 & MFA 103835/2016, dated 27.05.2022]. The claimant was aged about 42 years at the time of the accident and therefore, appropriate multiplier applicable to his age is 14. Notional income of the claimant is fixed at Rs.4,000/-per month following the chart prepared by the Karnataka State Legal Services Authority which is generally followed in compensation cases throughout the State of Karnataka. 25% of the established income is required to be added towards loss of future prospects. Because of serious fracture suffered by the claimant to the left humerus, he would not have been able to do any gainful work at least for a period of six months. Therefore, a sum of Rs.24,000/- is required to be awarded towards loss of earning during laid up period (Rs.4,000x 6 months). 15. In regard to the functional disability suffered by the claimant, as already noticed, relevant medical reports are Ex.P4-Wound Certificate, Ex.P8-Out Patient Book, Ex.P9-Disability Certificate and Ex.P144-Discharge Summary. Therefore, a sum of Rs.24,000/- is required to be awarded towards loss of earning during laid up period (Rs.4,000x 6 months). 15. In regard to the functional disability suffered by the claimant, as already noticed, relevant medical reports are Ex.P4-Wound Certificate, Ex.P8-Out Patient Book, Ex.P9-Disability Certificate and Ex.P144-Discharge Summary. Learned Tribunal has also placed on record the evidence of PW4-Professor of Orthopedic Surgery, VIMS Hospital, Bellary. He has stated in his evidence that he had perused Ex.P4-Wound Certificate and other relevant records from Hosmat Hospital, where the claimant had undergone surgery on two occasions. He also stated that after two surgeries, the claimant used to take follow-up treatment under him. He has also stated as follows : “On my examination I found broad, tender, puckered scar over volar aspect of left elbow and forearm. There is absence of lower 1/3rd of left arm and upper 1/2 forearm muscles in volar aspect. Left hand grip is below > 70%, there are no active movements at elbow, passive movements are painful with bony crepctures. Left shoulder and hand muscles are wasted. There is evidence of partial median and ulnar nerve palsy. Is having abnormal painful sensation distal to left elbow. Patient is not able to do any kind of activity with his left upper limb effectively. Considering the above findings I am of the opinion that the individual has to bear permanent parital physical disablement of 65% (Sixty Five Percent) only with respect to left upper limb.” During his cross-examination, it was elicited that he had not treated the claimant immediately after the accident and he had stated that the claimant had lost 30% of grip of left hand. It was further elicited that if artificial elbow joint or allograft is done, there are chances of claimant improving his hand grip. He had denied the suggestion that the claimant was not suffering any bony crepetus. The evidence of PW4 clearly shows that the left hand grip is below 70% and the claimant is having difficulty in moving his elbow and his left shoulder and hand muscles are wasted and he is also suffering from partial median ulnar nerve palsy. His evidence clearly shows that on account of injuries suffered by the claimant in the accident in question, he would not be able to do any kind of activities with his left upper limb. His evidence clearly shows that on account of injuries suffered by the claimant in the accident in question, he would not be able to do any kind of activities with his left upper limb. On an entire appreciation and evaluation of the same, the learned Tribunal had fixed functional disability of the claimant at 25%. Even though the evidence is not very clear as to whether the claimant was doing hotel business or doing agricultural work, it is evident that his sustenance clearly depended on his physical labour and once it is found that the claimant has lost effective use of his left upper limb, his ability to earn as labourer is taken away nearly completely. An useful observation in this behalf is found in the decision of Hon’ble Apex Court in JAGDISH v. MOHAN AND OTHERS, (2018) 4 SCC 571 which reads as under : “14. ……But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does, as it must, it must provide a realistic recompense for the pain of loss and the trauma of suffering. Awards of compensation are not law's doles. In a discourse of rights, they constitute entitlements under law. Our conversations about law must shift from a paternalistic subordination of the individual to an assertion of enforceable rights as intrinsic to human dignity.” 16. Therefore, keeping in view the above observations made by the Hon’ble Apex Court, I am of the view that the functional disability of the claimant is required to be taken at 50%. In that view of the matter, loss of earning capacity is required to be recomputed as under : Rs.4,000 + 25% x 12 x 14 x 50/100= Rs.4,20,000/- 17. Thus, in all, the claimant would be entitled to total compensation under the following heads : Pain and suffering Rs.40,000 Medical expenses Rs.1,50,000/- Conveyance Charges Rs.20,000/- Nourishing Food & Attendant Charges Rs.20,000/- Loss of earning during laid-up period for six months Rs.24,000/- Loss of earning capacity Rs.4,20,000/- Total Rs.6,74,000/- 18. The appellant/claimant shall be entitled to total compensation of Rs.6,74,000/- as against Rs.3,40,000/- awarded by the learned Tribunal. The appellant/claimant shall be entitled to total compensation of Rs.6,74,000/- as against Rs.3,40,000/- awarded by the learned Tribunal. Thus, the claimant would be entitled to enhanced compensation of Rs.3,34,000/- which shall carry interest at 6% per annum from the date of petition till date of payment. 19. Hence, the following : ORDER (a) Both the appeals are disposed off to the above extent. (b) In modification of the impugned award, the claimant shall be entitled to enhanced compensation of Rs.3,34,000/- which shall carry interest at 6% per annum from the date of petition till date of payment. (c) Appellant-Insurance Company shall deposit the enhanced compensation amount with accrued interest within a period of six weeks from today before the learned Tribunal. (d) Amount in deposit, if any, before this Court shall be transmitted to the learned Tribunal along with TCR forthwith. (e) No order as to costs. (f) Pending applications, if any, do not survive for consideration and accordingly, they are disposed off.