JUDGMENT : UMESH M. ADIGA, J. Both these appeals arise out of judgment and award dated 18.11.2019 passed by the Additional Motor Accidents Claims Tribunal and II Additional Senior Civil Judge, Udupi (for short 'Tribunal') in MVC.No.604 of 2017. MFA.No.1427/2021 is filed by the claimant and MFA.No.2579/2020 is filed by insurer. 2. Both the appeals arise out of common judgment and award, therefore they are taken up together for disposal. 3. For the sake of convenience, the parties are referred to as per their ranking before the Tribunal. 4. It is a case of the claimant that on 23.11.2016 at about 07.45 a.m., while the petitioner was going on his motorcycle bearing registration No.KA-20-W-6003, met with an accident on Mijaru to Mangaluru road due to rash and negligent driving of lorry bearing registration No.KA- 19-AA-9678. Due to impact, the claimant sustained fracture injuries and has suffered permanent disability. With these reasons, he prayed to award compensation. 5. The respondents No.1 was the owner and respondent No.2 was the insurer of the offending vehicle. Respondent No.1 remained ex-parte before the Tribunal and respondent No.2 filed its written statement denying the averments of the claim petition and also denied its liability to pay the compensation. With these reasons, it prayed to dismiss the claim petition. 6. From the rival contentions of the parties, the Tribunal framed necessary issues. 7. The claimant to prove his case, examined 4 witnesses as PWs-1 to 4 and marked 39 documents as per Exs.P1 to P39. The respondent-Insurance Company though has not examined any witnesses but marked 01 document as per Ex.R1. 8. The Tribunal after hearing both parties and appreciating the pleadings and evidence on record, by the impugned judgment, awarded the following amount of compensation: 9. Heard the arguments of the learned counsel appearing for the parties. 10. Learned counsel for the appellant/claimant vehemently contends that the claimant had sustained in all four fractures but the Tribunal has awarded meager amount of Rs.40,000/- towards 'pain and agony', which is highly unsatisfactory. He further contends that according to evidence of PW.2, claimant has suffered permanent disability of 39 but the Tribunal has taken only 15%, which is not in accordance with the law. The amount of compensation awarded on the other heads also on the lower side and hence, prays to enhance the compensation. 11. He further contends that according to evidence of PW.2, claimant has suffered permanent disability of 39 but the Tribunal has taken only 15%, which is not in accordance with the law. The amount of compensation awarded on the other heads also on the lower side and hence, prays to enhance the compensation. 11. Learned counsel for insurer contends that looking to the facts and circumstances, accident occurred due to the contributory negligence of claimant as well as the driver of the lorry and both have equally contributed to the accident. The Tribunal has not considered the same. The learned counsel further contends that PW.2 is not a competent witness to depose about the disability. According to his own evidence, he obtained Master Degree in Forensic Science and he also admitted that he cannot assess the functional disability to a particular limb as well as the whole body and on basis of such evidence, the claimant is contending that he has suffered functional disability to an extent of 39%. In the absence of evidence of PW.2, there are no materials on record to prove his case regarding the disability. 12. The learned counsel for the insurer further contends that according to evidence of PW.1, he was working as a Probationary Lecturer in a college and earning Rs.23,000/-per month. The said fact is also not proved. If he is permanently working in the said college, then there may not be any loss of income due to the injuries sustained in the accident. Therefore, awarding of compensation under the head 'loss of future earning capacity due to permanent disability' is not sustainable. On these reasons prayed to dismiss the appeal filed by the claimant and also set aside the impugned judgment passed by the Tribunal. 13. Learned counsel for owner of the vehicle supported the contention of the respondent-insurer. 14. PW.1 in his evidence has stated that accident occurred due to negligence of lorry driver. In his cross- examination, he denied several suggestions made by insurer to contend that it was occurred due to negligence of claimant as well as driver of the lorry. Even in his cross- examination, he has stated that looking to the arrival of the lorry, he went to extreme left side of the road, in-spite of that, driver of the lorry came to that point and hit him. Even in his cross- examination, he has stated that looking to the arrival of the lorry, he went to extreme left side of the road, in-spite of that, driver of the lorry came to that point and hit him. Undisputedly, charge sheet was filed against driver of the lorry and the driver of the lorry has not challenged the same before a competent forum contending that accident was not caused due to his negligence. The Tribunal has considered the evidence of both the parties in this regard and held that accident occurred due to negligence of driver of the lorry. Hence, the contention of the insurer in this regard is not acceptable. 15. According to the claimant, in the claim petition he has stated that he was working as an Assistant Professor in the Department of Aeronautical Engineering at Mangalore Institute of Technology and Engineering (MITE), Badaga Mijar, Moodabidri, Mangaluru Taluk and was having a salary of Rs.23,280/- per month. He further stated that due to the said injury, he was not able to attend to his regular work. PW.1 in his cross-examination admitted that it was a temporary appointment. He worked only for a period of 01 month 09 days and till the evidence was recorded he had not drawn the salary for the said period. He has not produced any document to show that he was removed from service, but he volunteers that he himself resigned from the job. Prior to the said appointment, he was not working anywhere. 16. The claimant examined PW.3, who was working as the Superintendent of the said Collage. According to his evidence, claimant served in the said Collage in the month of October and November-2016 and he left the job. He worked 18 days in the month of October and 17 days in the month of November and his salary was Rs.23,280/-. Ex.P34 is an Appointment Letter of claimant. According to it, he will receive consolidated gross salary of Rs.23,280/- including basic, DA, HRA etc. It is dated 12.10.2016. It indicates that he was capable of drawing a salary of Rs.23,000/- and above. His qualification as M.Tech in Aeronautics is not seriously disputed. Considering the facts and circumstances, the Tribunal has taken his income as Rs.23,000/-. 17. It is the case of claimant that after the accidental injuries, he was unable to do the work and hence, resigned to the post. His qualification as M.Tech in Aeronautics is not seriously disputed. Considering the facts and circumstances, the Tribunal has taken his income as Rs.23,000/-. 17. It is the case of claimant that after the accidental injuries, he was unable to do the work and hence, resigned to the post. But he has not produced any materials to prove it. PW.1 and PW.3 in their evidence have stated that claimant was not attending the said college. Considering the two fractures, both are to the right leg, it may cause difficulty to claimant in performing his work as a Lecturer. As rightly submitted by the learned counsel for insurer, PW.2 is not a competent witness to depose regarding the disability. He is not an orthopedic surgeon and even he was unable to assess disability to the right lower limb or to the whole body. On the basis of such evidence, it is difficult to accept that claimant was suffering from disability to an extent of 39% of the body. 18. Looking at the nature of the injuries and nature of the work of the claimant, his disability has to be notionally considered. Even medical records support his contention that he has sustained fracture of femur, tibia and fibula. Considering all the available materials, the disability suffered by the claimant is taken as 10% to the whole body. 19. The Tribunal has not assessed compensation properly in respect of 'pain and agony', 'loss of income during laid up period' and 'loss of amenities'. Looking to the available materials, the compensation requires to be enhanced under the said heads. According to the materials available, claimant took treatment as inpatient for 34 days. He underwent few surgeries. When he was in the hospital, someone must have attended him in the hospital and even after discharge, at least for a period of 2-3 months, someone must have attended him around the clock. These facts were not considered by the Tribunal. 20. For the aforesaid discussions, the claimant is entitled to following amount of compensation: The claimant is entitled to compensation of Rs.13,90,000/- as against Rs.14,24,752/- awarded by the Tribunal along with interest at the rate of 6% p.a. from the date of petition till the date of realisation. Undisputedly, respondents are liable to pay it. 21. In the result, I proceed to pass the following: ORDER i) The Appeals are allowed in part. Undisputedly, respondents are liable to pay it. 21. In the result, I proceed to pass the following: ORDER i) The Appeals are allowed in part. ii) The judgment and award dated 18.11.2019 passed by the Additional Motor Accidents Claims Tribunal and II Additional Senior Civil Judge, Udupi (for short 'Tribunal') in MVC.No.604 of 2017, stands modified. iii) The claimant is entitled to compensation of Rs.13,90,000/- as against Rs.14,24,752/- awarded by the Tribunal along with interest at the rate of 6% p.a. from the date of petition till the date of realisation. iv) The respondent - Insurance Company shall deposit the amount within a period of six weeks from the date of award. v) Whatever the amount deposited and available in the Registry shall be transmitted to the Tribunal. vi) The remaining portion of the award of the Tribunal shall remain unaltered. vii) Draw award accordingly. Registry is directed to send back the records along with a copy of this judgment to the concerned Tribunal.